PROPERTY, STOCK AND BUSINESS AGENTS BILL 2001

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This is a Bill, not an Act. For current law, see the Acts databases.

PROPERTY, STOCK AND BUSINESS AGENTS BILL 2001

New South Wales Property, Stock and Business Agents Bill 2001 Contents Page Part 1 Preliminary 1 Name of Act 2 2 Commencement 2 3 Definitions 2 4 Exemptions from Act 10 5 Notes 12 Part 2 Licences and certificates of registration Division 1 Requirement for licence or certificate of registration 6 Kinds of licences and certificates of registration 13 7 Agents required to be licensed 13 8 Corporations require corporation licence 14 9 Salespersons and trainees require certificate of registration 15 b01-090-p02.820

Property, Stock and Business Agents Bill 2001 Contents Page 10 Registered salespersons and trainees required to be employed and supervised by licensee 15 11 Production of licence or certificate of registration 16 12 Lending of licence or certificate of registration prohibited 16 Division 2 Eligibility, qualifications and disqualification 13 Eligibility for licence or certificate of registration 16 14 Qualifications for licence or certificate of registration 17 15 Disqualified persons 18 16 What constitutes approved policy of professional indemnity insurance 20 Division 3 Application and issue procedure 17 Application for licence or certificate of registration 21 18 Consideration of applications 22 19 Determination of applications 22 20 Conditions 22 21 Special conditions for on-site residential property managers and trainees 23 22 Issue of licence or certificate of registration 23 23 Duration 24 24 Reissue and restoration of a licence or certificate of registration 24 25 Review by ADT 25 Part 3 General conduct of licensees and registered persons Division 1 Place and name of business 26 Registered office and address 26 27 Display of name at registered office 26 28 Business names 27 Division 2 Business practices and supervision 29 Each place of business to be in charge of licensee 28 30 Duty of licensee and person in charge to properly supervise business 29 31 Licensee not to share commission with certain persons 30 32 Subagency agreements to be in writing 30 33 Franchising agreements 31 34 Review of commission and fees 32 Contents page 2

Property, Stock and Business Agents Bill 2001 Contents Page 35 Rules of conduct for licensee's business 33 36 Undertakings by licensees and registered persons 33 37 Duty of licensee to notify defalcation 33 Division 3 Employees 38 Liability of licensee for acts of employees 34 39 Licensee to keep records of certain employees 34 40 Duty of licensee not to employ certain persons 34 41 Duty of licensee to notify disqualification of employee 35 42 Employees required to notify disqualification 35 Division 4 Conflicts of interest 43 Financial and investment advice by real estate agents 35 44 Duty not to act for both buyer and seller of land 35 45 Restrictions on licensee obtaining beneficial interest in property 36 Division 5 Advertisements and representations 46 Advertisements to include information about licensee 38 47 Publishing false or misleading advertisements 39 48 Misrepresentation by licensee or registered person 40 49 Damages for fraudulent misrepresentation 41 Part 4 Agency agreements Division 1 Requirements for agency agreements 50 Definitions 42 51 No entitlement to commission or expenses without agency agreement 42 52 Approved guide to be provided before agency agreement for residential property signed 43 53 Agency agreement must disclose rebates, discounts and commissions 43 54 Prohibition against listing residential or rural land subject to sole or exclusive agency 44 Contents page 3

Property, Stock and Business Agents Bill 2001 Contents Page Division 2 Cooling-off period for residential or rural agency agreements 55 Cooling-off period for residential or rural agency agreements 45 56 Agency agreement can be rescinded during cooling-off period 45 57 Effect of rescission 46 58 No contracting out 46 Part 5 Residential property and rural land sales Division 1 Contract for sale of residential property 59 Proposed contract for sale of residential property 47 60 Contracts for sale of residential property 48 61 Procedure following rescission 49 Division 2 Bidding at auction of residential property or rural land 62 Restrictions on bidding by or on behalf of seller or auctioneer 50 63 Bids may only be taken from registered bidders 50 64 Bidders Record 51 65 Details to be established by proof of identity 52 66 Confidentiality of Bidders Record 52 67 Approved consumer education guide for bidders at auctions 53 Division 3 Representations as to selling price of residential property 68 False representation to seller or prospective seller 53 69 False representation to prospective buyer 53 70 Requirement to substantiate selling price estimates--residential property 54 71 Division extends to estimates of price range 54 72 Extended meaning of "estimate" 54 Part 6 Auctions--general 73 Collusive practices at auction sales 55 74 False entry in auction record 56 Contents page 4

Property, Stock and Business Agents Bill 2001 Contents Page 75 Misrepresentation as to quality etc 57 76 Restrictions on bidding by or on behalf of seller or auctioneer of livestock 57 77 Contracting out of prescribed terms and conditions of auction sales 57 78 Successful bidder at auction to supply information 58 79 Livestock auctions--"comeback" prohibited 58 Part 7 Trust accounts Division 1 Preliminary 80 Interpretation 59 Division 2 Payment of trust money into trust account 81 Trust money to be paid to trust account 59 82 Approval of authorised deposit-taking institutions 60 83 Trust money not available to pay licensee's debts 60 84 Licensee to notify trust account becoming overdrawn 60 85 Interest earned on trust accounts to be paid to Statutory Interest Account 61 Division 3 Responsibilities of authorised deposit-taking financial institutions 86 Institutions to provide Director-General with certain information 62 87 Closure of trust accounts 63 88 Overdrawn trust accounts 63 89 Dishonoured cheques 64 90 Monthly certification 64 91 Annual certification by auditor 65 92 Protection of authorised deposit-taking institutions from liability 65 Division 4 Unclaimed trust money 93 Unclaimed trust money held by licensee 66 94 Unclaimed trust money held by former licensee or personal representative 66 95 Disposal of unclaimed money in trust accounts 67 96 Repayment of unclaimed trust money 68 Contents page 5

Property, Stock and Business Agents Bill 2001 Contents Page Division 5 Information about trust accounts or transactions 97 Director-General may require information 69 98 Person concerned in transaction may request itemised account 69 99 Offence 70 Part 8 Records Division 1 Keeping and inspection of records 100 Licensee's records 71 101 Licensee to make and keep certain records 71 102 Inspection of licensee's records 72 103 Inspection of records of financial institutions 73 104 Power to require production of licensee's records 73 105 Power to take possession of records to be used as evidence 74 106 Additional requirements for managing agents 74 107 Offence 75 Division 2 Audit of licensee's records 108 Requirement for audit 75 109 Audit period 76 110 Statutory declaration required when no trust money held or received 76 111 Audit obligations of partners 76 112 Qualifications of auditors 77 113 Duties of auditors 77 Division 3 Freezing of accounts 114 Definitions 78 115 Director-General may freeze licensee's accounts in particular cases 78 116 Financial institution must comply with direction 79 117 Account not to be operated unless Director-General allows 80 118 Director-General may operate account 80 119 Withdrawal of direction 80 Contents page 6

Property, Stock and Business Agents Bill 2001 Contents Page Part 9 Complaints and disciplinary action 120 Grounds for disciplinary action 81 121 Disciplinary action 82 122 Decision to take no further action 83 123 Complaints 83 124 Show cause notice 83 125 Power to suspend licence or certificate of registration when show cause notice served 84 126 Inquiries and investigation 84 127 Taking of disciplinary action 84 128 Recovery of monetary penalty 85 129 Review of disciplinary action by ADT 85 130 Warning notices 85 131 Failure to comply with disqualification from involvement in business 86 132 Return of suspended or cancelled licence 86 Part 10 Management and receivership Division 1 Preliminary 133 Definitions 87 134 Associates of a licensee 88 135 Failure to account 89 Division 2 Management 136 Appointment of manager 89 137 Qualifications for appointment as manager 90 138 Powers of manager 90 139 Management continues under receivership 91 140 Acts of manager taken to be acts of licensee 91 141 Manager may be reimbursed for damages 91 142 Payment of expenses of management 92 143 Manager to report to Director-General 92 144 Trust money 92 145 Office accounts 93 146 Termination of management 93 147 Obstruction of managers 93 Contents page 7

Property, Stock and Business Agents Bill 2001 Contents Page Division 3 Receivership 148 Supreme Court may appoint receiver 93 149 Receivership may extend to property of licensee's associate 94 150 Court to be closed 94 151 Order to be served 95 152 Receiver may take possession of property 95 153 Information about receivable property 96 154 Stop order on account 97 155 Improper dealing with property 97 156 Recovery of compensation for disposal of receivable property 98 157 Receiver may give certificate 99 158 Receiver taken to be beneficially entitled to property 100 159 Receiver may deal with property 100 160 Other powers of receiver 100 161 Notice to claim receivable property 101 162 Lien for costs on receivable property 101 163 Examination by receiver 102 164 Property not dealt with by receiver 102 165 Investment of money by receiver 103 166 Receiver may be reimbursed for damages 103 167 Payment of expenses of receivership 103 168 Supreme Court may review expenses of receivership 104 169 Receivable property not to be attached 104 170 Applications for directions by receiver, licensee etc 104 171 Supreme Court may give general directions to receiver 104 172 Receiver to report to Supreme Court and Director-General 105 173 Termination of appointment of receiver 105 174 Obstruction of receivers 106 Part 11 Compensation Fund Division 1 Establishment and management 175 Compensation Fund 107 176 Money payable to Compensation Fund 107 177 Application of money in Compensation Fund 107 Division 2 Contributions and levies 178 Contributions 108 179 Levies 108 Contents page 8

Property, Stock and Business Agents Bill 2001 Contents Page Division 3 Claims 180 Definitions 109 181 Meaning of "failure to account" 109 182 Division applies when person reasonably believed to be a licensee 110 183 Claims against Compensation Fund 110 184 Legal proceedings 111 185 Limits on amounts recoverable 112 186 Advertisements 112 187 Subrogation 113 188 Recovery of payments from directors 113 189 Production of documents 114 190 Satisfaction of claims and judgments 114 Division 4 Examination of accounts of licensees and former licensees 191 Definitions 114 192 Appointment of accounts examiner to examine licensee's accounts 115 193 Accounts examiner to report on accounts 115 194 Powers of accounts examiner 115 195 Confidentiality 116 196 Former licensees 117 Part 12 Property Services Statutory Interest Account 197 Statutory Interest Account 118 198 Money payable to Statutory Interest Account 118 199 Application of money in Statutory Interest Account 118 200 Application of money for purposes of certain Acts 119 Part 13 Enforcement 201 Authorised officers 120 202 Purposes for which powers of authorised officers can be exercised 120 203 Powers of entry, inspection etc 120 204 Obstruction etc of authorised officers 121 205 Taking possession of records to be used as evidence 122 206 Search warrants 122 207 Injunctions 123 Contents page 9

Property, Stock and Business Agents Bill 2001 Contents Page Part 14 Offences and proceedings Division 1 Offences 208 Fraudulent conversion and false accounts of money received by licensee or registered person 124 209 Fraudulent accounts for expenses, commission and other charges 125 210 Operation of Crimes Act not affected 125 Division 2 Proceedings 211 Proceedings for offences 125 212 Penalty notices 126 213 Time for laying information 127 214 Offences by corporations 127 Part 15 Administration 215 Disclosure of information 128 216 Register 129 217 Certificate evidence 130 218 Delegation 130 Part 16 Miscellaneous 219 Fair Trading Act not affected 131 220 Service of notices 131 221 Repeals 132 222 Savings and transitional provisions 132 223 Consequential amendments of Acts 132 224 Regulations 132 225 Review of Act 133 Schedules 1 Savings and transitional provisions 134 2 Consequential amendments 138 Contents page 10

New South Wales Property, Stock and Business Agents Bill 2001 No , 2001 A Bill for An Act to provide for the registration and regulation of property, stock and business agents; to repeal the Property, Stock and Business Agents Act 1941; and for other purposes.

Clause 1 Property, Stock and Business Agents Bill 2001 Part 1 Preliminary The Legislature of New South Wales enacts: 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Property, Stock and Business Agents Act 2001. 4 2 Commencement 5 This Act commences on a day or days to be appointed by 6 proclamation. 7 3 Definitions 8 (1) In this Act: 9 agency agreement means an agreement pursuant to which a licensee 10 performs or agrees to perform services in the capacity of a licensee. 11 agent means: 12 (a) a real estate agent, or 13 (b) a stock and station agent, or 14 (c) a business agent, or 15 (d) a strata managing agent, or 16 (e) a community managing agent, or 17 (f) an on-site residential property manager. 18 auctioneer means any person: 19 (a) who, in the course of trade or business and at an auction sale 20 (or a proposed auction sale), acts as an auctioneer or sells for 21 reward (whether monetary or otherwise) any land or any 22 livestock, or 23 (b) who sells or offers for sale, or who attempts to sell, any land or 24 any livestock by way of auction. 25 auction means the sale of property by any means (including the 26 Internet) whereby: 27 (a) the highest, the lowest, or any bidder is the purchaser, or the 28 first person who claims the property submitted for sale at a 29 certain price named by the person acting as auctioneer is the 30 purchaser, or 31 Page 2

Property, Stock and Business Agents Bill 2001 Clause 3 Preliminary Part 1 (b) there is a competition for the purchase of the property in any 1 way commonly known and understood to be by auction. 2 authorised officer has the meaning given in Part 13 (Enforcement). 3 business agent means any person (whether or not the person carries on 4 any other business) who for reward (whether monetary or otherwise) 5 exercises or carries on business as an agent for performing any of the 6 following functions: 7 (a) selling, buying or exchanging or otherwise dealing with or 8 disposing of, or 9 (b) negotiating for the sale, purchase or exchange or any other 10 dealing with or disposition of, or 11 (c) compiling for publication or compiling and publishing a 12 document that contains a list relating solely or substantially to 13 the acquisition or disposal by any person of, 14 businesses or professional practices or any share or interest in or 15 concerning or the goodwill of or any stocks connected with businesses 16 or professional practices. 17 business day means a day other than a Saturday, Sunday, public 18 holiday or bank holiday in New South Wales. 19 business salesperson means a person (other than the holder of a 20 business agent's licence) who: 21 (a) for or on behalf of a business agent, induces or attempts to 22 induce or negotiates with a view to inducing any person to sell, 23 buy, exchange or otherwise deal with or dispose of: 24 (i) any business or professional practice, or 25 (ii) any share or interest in or concerning the goodwill of, or 26 any stocks connected with, any business or professional 27 practice, or 28 (b) for or on behalf of a business agent and otherwise than at a 29 place at which that business agent carries on business, collects 30 instalments of principal or interest payable: 31 (i) under a bill of sale given in respect of a business or 32 professional practice, or 33 (ii) under a contract for the sale on terms of a business or 34 professional practice. 35 certificate of registration means a certificate of registration under this 36 Act. 37 Page 3

Clause 3 Property, Stock and Business Agents Bill 2001 Part 1 Preliminary community managing agent means a person who is engaged or 1 appointed, for monetary or other reward, to exercise functions of an 2 association constituted for a scheme under the Community Land 3 Development Act 1989 but who is not: 4 (a) the proprietor of a lot within the scheme, or 5 (b) the secretary or treasurer of the association, or 6 (c) a person authorised by the management statement for the 7 scheme to exercise the functions of the secretary or treasurer of 8 the association, or 9 (d) a person who maintains or repairs any property that the 10 association is required to maintain and keep in repair. 11 Compensation Fund or Fund means the Property Services 12 Compensation Fund established and maintained under this Act. 13 Corporations Act means the Corporations Act 2001 of the 14 Commonwealth. 15 Department means the Department of Fair Trading. 16 Director-General means the Director-General of the Department. 17 employee includes any person employed whether on salary, wages, 18 bonus, commission, fees, allowance or other remuneration and 19 includes a director or member of the governing body of a corporation. 20 former licensee means a person who has been but has ceased to be a 21 licensee. 22 individual means a natural person and does not include a corporation. 23 land includes: 24 (a) a lot within the meaning of the Strata Schemes (Freehold 25 Development) Act 1973 or the Community Land Development 26 Act 1989 and a leasehold interest in a lot within the meaning of 27 the Strata Schemes (Leasehold Development) Act 1986, and 28 (b) shares that, under a company title scheme, entitle their holder 29 to the possession of premises. 30 licence means a licence under this Act. 31 licensee means the holder of a licence under this Act. 32 licensee's records has the meaning given in Part 8 (Records). 33 livestock includes horses, cattle, asses, mules, sheep, swine, camels, 34 goats, alpacas, ostriches and emus. 35 Page 4

Property, Stock and Business Agents Bill 2001 Clause 3 Preliminary Part 1 money includes an instrument for the payment of money in any case 1 where the instrument may be paid into a bank or other authorised 2 deposit-taking institution. 3 money received for or on behalf of any person includes money held 4 for or on behalf of any person, whether originally received for or on 5 the person's behalf or not. 6 on-site residential property manager means a person (whether or not 7 the person carries on any other business) who, for reward (whether 8 monetary or otherwise) carries on business: 9 (a) as an agent for giving possession of residential premises under 10 a lease, licence or other contract or arrangement, or 11 (b) as an agent for collecting bonds, deposits, rents, fees or other 12 charges in connection with any such lease, licence or other 13 contract, or 14 (c) as a provider of building management services for residential 15 premises (for example, management of the repair, maintenance 16 and security of the premises). 17 Note. It is a condition of an on-site residential property manager's licence that the 18 licensee may act as an on-site residential property manager only in respect of 19 premises at which the licensee's principal place of residence is situated and only 20 if the licensee owns or has a prescribed interest in that principal place of residence. 21 principal place of business means, in relation to a corporation that 22 carries on business at more than one place, the place of business 23 specified in the application made by the corporation for a licence on its 24 own behalf to be its principal place of business. 25 real estate agent means a person (whether or not the person carries on 26 any other business) who, for reward (whether monetary or otherwise), 27 carries on business as an agent for: 28 (a) inducing or attempting to induce or negotiating with a view to 29 inducing any person: 30 (i) to buy, sell, exchange, lease, assign or otherwise dispose 31 of any land, or 32 (ii) to make an offer to buy, sell, exchange, lease, assign or 33 otherwise dispose of any land, or 34 (iii) to accept an offer to buy, sell, exchange, lease, assign or 35 otherwise dispose of any land, or 36 (iv) to enter into a contract for the buying, selling, 37 exchanging, leasing, assigning or other disposal of land, 38 or 39 Page 5

Clause 3 Property, Stock and Business Agents Bill 2001 Part 1 Preliminary (b) buying, selling, exchanging, leasing, assigning or otherwise 1 disposing of any land, whether or not an auction is involved, or 2 (c) collecting rents payable in respect of any lease of land, or 3 (d) compiling for publication or compiling and publishing any 4 document that contains a list relating solely or substantially to 5 the acquisition or disposal by any person of land, 6 but does not include a person who carries on business as such an agent 7 in respect of any parcel of rural land with an area of more than 2.5 8 hectares. 9 real estate salesperson means a person (other than the holder of a real 10 estate agent's licence) who, as an employee of a real estate agent or a 11 corporation that employs a real estate agent (the employer): 12 (a) induces or attempts to induce or negotiates with a view to 13 inducing any person: 14 (i) to buy, sell, exchange, lease, assign or otherwise 15 dispose of any land, or 16 (ii) to make an offer to buy, sell, exchange, lease, assign or 17 otherwise dispose of any land, or 18 (iii) to accept an offer to buy, sell, exchange, lease, assign or 19 otherwise dispose of any land, or 20 (iv) to enter into a contract for the buying, selling, 21 exchanging, leasing, assigning or other disposal of land, 22 or 23 (b) elsewhere than at a place of business of the employer: 24 (i) collects rent payable in respect of any lease of land, or 25 (ii) collects instalments of principal or interest payable 26 under a mortgage of land or under a contract for the sale 27 on terms of land, or 28 (iii) collects amounts payable to a company by a person 29 whose shares in the company entitle their holder to the 30 possession of premises, or 31 (c) for or on behalf of the employer, introduces or arranges for the 32 introduction of prospective buyers, sellers, lessees or licensees 33 of premises to a real estate agent or stock and station agent or 34 to the owner, or to an agent of the owner, of the premises, or 35 Page 6

Property, Stock and Business Agents Bill 2001 Clause 3 Preliminary Part 1 (d) for or on behalf of the employer, arranges for the erection of 1 buildings for any other person, 2 except where the land concerned is rural land and has an area of more 3 than 2.5 hectares. 4 registered person means the holder of a certificate of registration 5 under this Act. 6 residential property has the same meaning as in Division 8 of Part 4 7 of the Conveyancing Act 1919. 8 rural land means land that is used or apparently intended to be used 9 for gain or profit for grazing of livestock, dairying, poultry farming, 10 viticulture, orcharding, beekeeping, horticulture, the growing of crops 11 of any kind, vegetable growing or any other purpose declared by the 12 regulations to be a rural purpose. 13 Statutory Interest Account means the Property Services Statutory 14 Interest Account referred to in Part 12. 15 stock and station agent means a person (whether or not the person 16 carries on any other business) who, for reward (whether monetary or 17 otherwise), carries on business as an agent for: 18 (a) doing (where the land concerned consists of rural land) any one 19 or more of the things referred to in paragraph (a)�(d) of the 20 definition of real estate agent, or 21 (b) inducing or attempting to induce or negotiating with a view to 22 inducing any person: 23 (i) to buy, sell or otherwise dispose of any livestock, or 24 (ii) to make an offer to buy, sell or otherwise dispose of any 25 livestock, or 26 (iii) to accept an offer to buy, sell or otherwise dispose of 27 any livestock, or 28 (iv) to enter into a contract for the purchase, sale or other 29 disposal of livestock, or 30 (c) selling, buying or exchanging any livestock, whether or not an 31 auction is involved, or 32 (d) providing agistment for livestock or collecting of fees for such 33 agistment. 34 stock and station salesperson means a person (other than the holder 35 of a stock and station agent's licence) who, as an employee of a stock 36 and station agent or a corporation that employs a stock and station 37 agent (the employer): 38 Page 7

Clause 3 Property, Stock and Business Agents Bill 2001 Part 1 Preliminary (a) does (where the land concerned consists of rural land) any one 1 or more of the things referred to in paragraphs (a)�(d) of the 2 definition of real estate salesperson, or 3 (b) induces or attempts to induce or negotiates with a view to 4 inducing any person: 5 (i) to buy, sell or otherwise dispose of any livestock, or 6 (ii) to make an offer to buy, sell or otherwise dispose of any 7 livestock, or 8 (iii) to accept an offer to buy, sell or otherwise dispose of 9 any livestock, or 10 (iv) to enter into a contract for the purchase, sale or other 11 disposal of livestock, or 12 (c) arranges for the provision of agistment for livestock, or 13 (d) elsewhere than at a place of business of the employer, collects 14 fees for the agistment of livestock. 15 strata managing agent means a person (whether or not such person 16 carries on any other business) who, for reward (whether monetary or 17 otherwise), exercises or performs any function of an owners 18 corporation within the meaning of the Strata Schemes Management 19 Act 1996, not being: 20 (a) a person who: 21 (i) is the proprietor of a lot to which the strata scheme for 22 which the owners corporation is constituted relates, or 23 (ii) is the lessee of a lot to which the leasehold strata 24 scheme for which the owners corporation is constituted 25 relates, or 26 (iii) is the secretary or treasurer of the executive committee 27 of the owners corporation, 28 and who exercises or performs only functions of the owners 29 corporation required, by the by-laws in force in respect of the 30 strata scheme or leasehold strata scheme for which the owners 31 corporation is constituted, to be exercised or performed by the 32 secretary or treasurer of that executive committee or of the 33 owners corporation, or 34 (b) a person who maintains or repairs any property for the 35 maintenance or repair of which the owners corporation is 36 responsible. 37 Page 8

Property, Stock and Business Agents Bill 2001 Clause 3 Preliminary Part 1 trainee community managing agent means a person (other than a 1 community managing agent holding a strata managing agent's licence) 2 who, as an employee of a community managing agent or a corporation 3 that employs a community managing agent, exercises any of the 4 functions of a community managing agent. 5 trainee managing agent means a trainee strata managing agent, 6 trainee community managing agent or trainee on-site residential 7 property manager. 8 trainee on-site residential property manager means a person (other 9 than the holder of an on-site residential property manager's licence or 10 the holder of a real estate agent's licence) who, as an employee of an 11 on-site residential property manager or a corporation that employs an 12 on-site residential property manager, exercises any of the functions of 13 an on-site residential property manager. 14 trainee strata managing agent means a person (other than the holder 15 of a strata managing agent's licence) who, as an employee of a strata 16 managing agent or a corporation that employs a strata managing agent, 17 exercises any of the functions of a strata managing agent. 18 trust account means a trust account required to be kept under this Act. 19 (2) A reference in the definition of real estate agent in subsection (1) to 20 the leasing of land includes a reference to the introduction, or 21 arranging for the introduction, of a prospective lessee or licensee of 22 premises to another licensed agent or to the owner, or the agent of the 23 owner, of premises. 24 (3) Where a person carries on business: 25 (a) as a business agent and also carries on business as an agent for 26 the collection of instalments of principal or interest payable 27 under bills of sale given in respect of businesses or 28 professional practices or under contracts for the sale on terms 29 of businesses or professional practices, a reference in this Act 30 to any such person acting as, or carrying on the business of, a 31 business agent includes a reference to that person carrying on 32 business as an agent for the collection of those instalments, or 33 (b) as a real estate agent and also carries on: 34 (i) business as an agent for the collection of instalments of 35 principal or interest payable under mortgages of land or 36 under contracts for the sale on terms of land, or 37 Page 9

Clause 3 Property, Stock and Business Agents Bill 2001 Part 1 Preliminary (ii) business as an agent for the collection of amounts 1 payable in relation to any premises to a company by a 2 person who is the holder of shares in the company and 3 who, by reason of the person's holding those shares, is 4 entitled to possession of those premises, or 5 (iii) the business of arranging for the erection of buildings 6 for or on behalf of other persons, 7 a reference in this Act to any such person acting as, or carrying 8 on the business of, a real estate agent includes a reference to 9 that person carrying on business as an agent for the collection 10 of those instalments or amounts or to that person carrying on 11 the business of so arranging for the erection of buildings, or 12 (c) as a stock and station agent and also carries on business as an 13 agent for the collection of instalments of principal or interest 14 payable under mortgages of rural land or under contracts for the 15 sale on terms of any such land, a reference in this Act to any 16 such person acting as, or carrying on the business of a stock and 17 station agent includes a reference to that person carrying on 18 business as an agent for the collection of those instalments. 19 4 Exemptions from Act 20 (1) This Act does not require a licence to be held by any of the following: 21 (a) a Minister of the Crown whether a Minister of the State of New 22 South Wales or of the Commonwealth, 23 (b) any Government Department of the State of New South Wales 24 or the Commonwealth (including any statutory corporation 25 representing the Crown), 26 (c) a council within the meaning of the Local Government 27 Act 1993, 28 (d) any public statutory authority prescribed by the regulations, 29 (e) any officer or employee of the Crown or of any such Minister, 30 department, corporation, council or authority in the exercise of 31 his or her functions as such officer or employee, 32 (f) the Public Trustee, the Protective Commissioner or any 33 executor, administrator, trustee, liquidator, official receiver, 34 trustee in bankruptcy of a bankrupt's estate, trustee under a 35 composition or scheme of arrangement or under a deed of 36 arrangement or under a deed of assignment, or manager of an 37 Page 10

Property, Stock and Business Agents Bill 2001 Clause 4 Preliminary Part 1 estate appointed under the Protected Estates Act 1983, in the 1 exercise of functions as such, 2 (g) any person for the purposes of any sale made of Crown lands 3 or other Crown property or for the purposes of any sale of any 4 property made by virtue of any writ or process issued out of any 5 Court or made in obedience to any process issued by any Court 6 or judge or justice for the recovery of any fine, penalty or 7 award, or under any rule, order or decree of any competent 8 Court or made pursuant to the Impounding Act 1993, 9 (h) a receiver appointed under this Act, in the exercise of the 10 receiver's functions under this Act, 11 (i) the New South Wales Land and Housing Corporation, 12 (j) the New South Wales Department of Housing, 13 (k) the Office of Community Housing of the Department of 14 Housing, 15 (l) the Aboriginal Housing Office, 16 (m) an organisation for the time being registered with the Office of 17 Community Housing, or under Part 5 of the Aboriginal 18 Housing Act 1998, 19 (n) an organisation prescribed by the regulations. 20 (2) This Act does not prevent any person for the time being entitled to 21 practise as a legal practitioner from performing any function, 22 exercising any power or carrying out any duty that, had this Act not 23 been enacted, the person might lawfully have performed, exercised or 24 carried out as a legal practitioner. 25 (3) An exemption under subsection (1) (f) that allows a person to carry on 26 a business lawfully without a licence expires 3 months after the 27 management of the business vests in the person. 28 (4) This Act does not apply to a sale by auction made for the purposes of 29 or in the course of a fundraising appeal within the meaning of the 30 Charitable Fundraising Act 1991 if the appeal is made, and the 31 proceeds of the sale are applied, in accordance with that Act. 32 (5) This Act does not require a business agent or a business salesperson to 33 hold a business agent's licence or a certificate of registration under this 34 Act if: 35 (a) the person holds a dealers licence under the Corporations 36 Act 2001 of the Commonwealth, or 37 Page 11

Clause 4 Property, Stock and Business Agents Bill 2001 Part 1 Preliminary (b) the person holds a proper authority, within the meaning of the 1 Corporations Act 2001 of the Commonwealth, from the holder 2 of such a dealers licence. 3 5 Notes 4 Notes included in this Act do not form part of this Act. 5 Page 12

Property, Stock and Business Agents Bill 2001 Clause 6 Licences and certificates of registration Part 2 Requirement for licence or certificate of registration Division 1 Part 2 Licences and certificates of registration 1 Division 1 Requirement for licence or certificate of 2 registration 3 6 Kinds of licences and certificates of registration 4 There are the following kinds of licences and certificates of registration 5 under this Act: 6 (a) real estate agent's licence, 7 (b) stock and station agent's licence, 8 (c) business agent's licence, 9 (d) strata managing agent's licence, 10 (e) on-site residential property manager's licence, 11 (f) corporation licence, 12 (g) certificate of registration as a real estate salesperson, stock and 13 station salesperson, business salesperson or trainee managing 14 agent. 15 7 Agents required to be licensed 16 (1) A natural person must not act as or carry on the business of (or 17 advertise, notify or state that the person acts as or carries on the 18 business of or is willing to act as or carry on the business of): 19 (a) a real estate agent, unless the person is the holder of a real 20 estate agent's licence, or 21 (b) a stock and station agent, unless the person is the holder of a 22 stock and station agent's licence, or 23 (c) a business agent, unless the person is the holder of a business 24 agent's licence, or 25 (d) a strata managing agent or community managing agent, unless 26 the person is the holder of a strata managing agent's licence, or 27 (e) an on-site residential property manager, unless the person is the 28 holder of an on-site residential property manager's licence. 29 Maximum penalty: 100 penalty units. 30 Page 13

Clause 7 Property, Stock and Business Agents Bill 2001 Part 2 Licences and certificates of registration Division 1 Requirement for licence or certificate of registration (2) A natural person is not entitled to bring any proceeding in any court or 1 tribunal to recover any commission, fee, gain or reward for any service 2 performed by the person: 3 (a) as a real estate agent, unless the person was the holder of a real 4 estate agent's licence, or employed the holder of such a licence, 5 at the time of performing the service, or 6 (b) as a stock and station agent, unless the person was the holder of 7 a stock and station agent's licence, or employed the holder of 8 such a licence, at the time of performing the service, or 9 (c) as a business agent, unless the person was the holder of a 10 business agent's licence, or employed the holder of such a 11 licence, at the time of performing the service, or 12 (d) as a strata managing agent or as a community managing agent, 13 unless the person was the holder of a strata managing agent's 14 licence, or employed the holder of such a licence, at the time of 15 performing the service, or 16 (e) as an on-site residential property manager, unless the person 17 was the holder of an on-site residential property manager's 18 licence or a real estate agent's licence, or employed the holder 19 of such a licence, at the time of performing the service. 20 (3) This section applies to a natural person whether or not the person is a 21 member of a partnership. 22 (4) The fact that a particular activity is an activity for which more than one 23 class of licence may be appropriate does not require the holding of 24 more than one class of licence so long as at least one of the licences 25 that is appropriate to the activity is held. 26 (5) For the purposes of this section, a person is not considered to carry on 27 a business merely because the person is engaged in a partnership that 28 carries on that business. 29 Note. Subsection (5) makes it clear that "silent" partners are not required to be 30 licensed. 31 8 Corporations require corporation licence 32 (1) A corporation must not act as or carry on the business of (or advertise, 33 notify or state that the corporation acts as or carries on the business of 34 or is willing to act as or carry on the business of) an agent unless the 35 corporation holds a corporation licence. 36 Maximum penalty: 200 penalty units. 37 Page 14

Property, Stock and Business Agents Bill 2001 Clause 8 Licences and certificates of registration Part 2 Requirement for licence or certificate of registration Division 1 (2) A corporation is not entitled to bring any proceeding in any court to 1 recover any commission, fee, gain or reward for any service performed 2 by the corporation as an agent unless the corporation was the holder of 3 a corporation licence at the time of performing the service. 4 9 Salespersons and trainees require certificate of registration 5 (1) A person must not do any of the following things unless the person is 6 the holder of a certificate of registration: 7 (a) be or remain as a real estate salesperson, stock and station 8 salesperson, business salesperson or trainee managing agent in 9 the employment of a person licensed (or required to be 10 licensed) under this Act, or 11 (b) represent, whether expressly or impliedly, that the person is a 12 real estate salesperson, stock and station salesperson, business 13 salesperson or trainee managing agent in the employment of a 14 person licensed (or required to be licensed) under this Act, or 15 (c) act as or exercise any of the functions of a real estate 16 salesperson, stock and station salesperson, business salesperson 17 or trainee managing agent. 18 (2) An employed licensee is not required to hold both a certificate of 19 registration and a licence to allow the licensee lawfully to do anything 20 that, in the absence of this section, the licensee could lawfully do as the 21 holder of the licence. 22 Maximum penalty: 100 penalty units. 23 10 Registered salespersons and trainees required to be employed and 24 supervised by licensee 25 (1) The holder of a certificate of registration must not act as or exercise 26 any of the functions of a real estate salesperson, stock and station 27 salesperson, business salesperson or trainee managing agent unless the 28 person does so as an employee of the holder of a licence under this 29 Act. 30 (2) The holder of a certificate of registration must not exercise any of the 31 functions of a real estate salesperson, stock and station salesperson, 32 business salesperson or trainee managing agent unless he or she does 33 so under the supervision of a person who: 34 (a) is the licensee in charge of the place of business at which the 35 employee is employed, and 36 Page 15

Clause 10 Property, Stock and Business Agents Bill 2001 Part 2 Licences and certificates of registration Division 1 Requirement for licence or certificate of registration (b) is the holder of a licence that allows the licensee to exercise 1 that function without contravening this Act. 2 Maximum penalty: 50 penalty units. 3 11 Production of licence or certificate of registration 4 A licensee or registered person must on request at the premises on 5 which the licensee carries on business or exercises functions as a 6 licensee or registered person produce his or her licence or certificate of 7 registration to an authorised officer and permit the authorised officer 8 to inspect the licence or certificate of registration. 9 Maximum penalty: 20 penalty units. 10 12 Lending of licence or certificate of registration prohibited 11 (1) The holder of a licence or certificate of registration must not let out, 12 hire or lend the licence or certificate of registration to any other person 13 or permit any other person to use the licence or certificate of 14 registration. 15 Maximum penalty: 100 penalty units. 16 (2) A court that convicts a person for an offence under this section is to 17 order the cancellation of the licence or certificate of registration 18 concerned. The licence or certificate of registration is cancelled on the 19 making of the order. 20 Division 2 Eligibility, qualifications and disqualification 21 13 Eligibility for licence or certificate of registration 22 (1) A natural person is eligible to hold a licence only if the Director- 23 General is satisfied that: 24 (a) the person is at least 18 years of age, and 25 (b) the person is a fit and proper person to hold a licence and each 26 person with whom the person is in partnership is a fit and 27 proper person to hold a licence, and 28 (c) the person has the qualifications required for the issue of the 29 licence, and 30 (d) the person is not a disqualified person, and 31 Page 16

Property, Stock and Business Agents Bill 2001 Clause 13 Licences and certificates of registration Part 2 Eligibility, qualifications and disqualification Division 2 (e) the person has paid such part of any contribution or levy 1 payable under Part 11 (Compensation Fund) as is due and 2 payable on the granting of the licence, and 3 (f) the person will, for the whole of the period of the licence, be 4 insured under an approved policy of professional indemnity 5 insurance in force with respect to the person or his or her 6 employer, or will as a licensee be exempt under the regulations 7 from the requirement for professional indemnity insurance. 8 (2) A corporation is eligible to hold a corporation licence only if the 9 Director-General is satisfied that: 10 (a) the corporation is a fit and proper person to hold a licence, and 11 (b) each director of the corporation is a fit and proper person to 12 hold a licence, and 13 (c) no director of the corporation or executive officer (within the 14 meaning of the Corporations Act) is a disqualified person, and 15 (d) at least one of the directors of the corporation holds a licence 16 that a natural person is required to hold to carry on the business 17 that the corporation carries on or proposes to carry on, and 18 (e) the corporation has paid such part of any contribution or levy 19 payable under Part 11 (Compensation Fund) as is due and 20 payable on the granting of the licence, and 21 (f) the corporation will, for the whole of the period of the licence, 22 be insured under an approved policy of professional indemnity 23 insurance. 24 (3) A person is eligible to hold a certificate of registration only if the 25 Director-General is satisfied that the person: 26 (a) is an individual who is at least 16 years of age, and 27 (b) is a fit and proper person to hold a licence, and 28 (c) has the qualifications required for the issue of a certificate of 29 registration of the class concerned, and 30 (d) is not a disqualified person. 31 14 Qualifications for licence or certificate of registration 32 (1) The qualifications required for the issue of a licence or certificate of 33 registration are such qualifications as the Minister may approve from 34 time to time by order published in the Gazette. 35 Page 17

Clause 14 Property, Stock and Business Agents Bill 2001 Part 2 Licences and certificates of registration Division 2 Eligibility, qualifications and disqualification (2) Without limiting the Minister's power to approve qualifications, the 1 Minister may approve qualifications by reference to any one or more 2 (or a combination of any one or more) of the following: 3 (a) the completion of a course of study, 4 (b) the completion of a period of training in a particular activity, 5 (c) the attainment of a standard of competency in a particular 6 activity, 7 (d) satisfaction of professional development requirements. 8 (3) Qualifications may be approved for a limited range of activities 9 specified in the approval, so as to enable a person who has those 10 qualifications to be granted a licence or certificate of registration 11 subject to conditions that limit the person to exercising the functions 12 of licensee or certificate of registration holder in relation to that limited 13 range of activities only. 14 (4) A person does not have the qualifications required for the issue of a 15 licence or certificate of registration by way of the reissue of an earlier 16 licence or certificate of registration if the person failed to comply with 17 any condition of the earlier licence or certificate of registration that 18 required the holder to undertake professional development, continuing 19 education or a course of study, unless the Director-General otherwise 20 determines in a particular case. 21 (5) The issue of a licence or certificate of registration is considered to be 22 by way of the reissue of an earlier licence or certificate of registration 23 if it is of the same kind as the earlier licence or certificate of 24 registration and the application for it is made during or within 12 25 months after the end of the period for which the earlier licence or 26 certificate of registration is in force. 27 15 Disqualified persons 28 (1) A person is a disqualified person for the purposes of this Act if the 29 person: 30 (a) has a conviction in New South Wales or elsewhere for an 31 offence involving dishonesty that was recorded in the last 10 32 years, unless the Director-General has determined under 33 subsection (2) that the offence should be ignored, or 34 (b) has a conviction that was recorded in the last 5 years for an 35 offence under section 12 (Lending of licence or certificate of 36 registration prohibited) of this Act or section 41 (Licensee not 37 Page 18

Property, Stock and Business Agents Bill 2001 Clause 15 Licences and certificates of registration Part 2 Eligibility, qualifications and disqualification Division 2 to lend licence) of the Property, Stock and Business Agents 1 Act 1941, unless the Director-General has determined under 2 subsection (2) that the offence should be ignored, or 3 (c) is an undischarged bankrupt or is a director or person 4 concerned in the management of a corporation that is the 5 subject of a winding up order or for which a controller or 6 administrator has been appointed, or 7 (d) at any time in the 3 years preceding the application for the 8 licence or certificate of registration was an undischarged 9 bankrupt, applied to take the benefit of any law for the relief of 10 bankrupt or insolvent debtors, compounded with his or her 11 creditors or made an assignment of his or her remuneration for 12 their benefit, unless the Director-General is satisfied that the 13 person took all reasonable steps to avoid bankruptcy, or 14 (e) at any time in the 3 years preceding the application for the 15 licence or certificate of registration was concerned in the 16 management of a corporation when the corporation was the 17 subject of a winding up order or when a controller or 18 administrator was appointed, unless the Director-General is 19 satisfied that the person took all reasonable steps to avoid the 20 liquidation or administration, or 21 (f) is a mentally incapacitated person, or 22 (g) is disqualified from holding a licence, certificate of registration 23 or other authority under a corresponding law or under the Fair 24 Trading Act 1987 or is the holder of such a licence, certificate 25 of registration or other authority that is suspended, or 26 (h) is in partnership with a person who is a disqualified person, or 27 (i) is for the time being declared to be a disqualified person under 28 Part 9 (Complaints and disciplinary action), or 29 (j) is a corporation that is the subject of a winding up order or for 30 which a controller or administrator has been appointed, or 31 (k) has failed to pay a contribution or levy payable by the person 32 under Part 11 (Compensation Fund) and the failure continues, 33 or 34 (l) has failed to pay any monetary penalty payable by the person 35 under Part 9 (Complaints and disciplinary action) or has failed 36 to comply with a direction given by the Director-General under 37 that Part, and the failure continues, or 38 Page 19

Clause 15 Property, Stock and Business Agents Bill 2001 Part 2 Licences and certificates of registration Division 2 Eligibility, qualifications and disqualification (m) has failed to provide the Director-General with an auditor's 1 report that the person is required to provide under this Act on 2 the audit of the records and documents relating to any money 3 held in a trust account kept by the person under this Act, or 4 (n) is in breach of any provision of this Act or the regulations that 5 is prescribed by the regulations as a disqualifying breach. 6 (2) The Director-General may determine that an offence committed by a 7 person should be ignored for the purposes of this section because of 8 the time that has passed since the offence was committed or because 9 of the triviality of the acts or omissions giving rise to the offence. 10 (3) In this section: 11 corresponding law means a law of another Australian jurisdiction that 12 is declared by the Minister from time to time by order published in the 13 Gazette to be a law that corresponds to this Act. 14 16 What constitutes approved policy of professional indemnity insurance 15 (1) For the purposes of this Act, an approved policy of professional 16 indemnity insurance is a policy, or a policy of a kind, that is approved 17 by the Minister for the time being by order published in the Gazette. 18 (2) An order may provide that a policy is an approved policy if the policy 19 complies with either or both of the following: 20 (a) the policy complies with the conditions set out in the order, 21 (b) the policy is described in the order by reference to the insurer 22 and the number of the policy or is identified in the order by 23 other specified particulars. 24 (3) If an order requires an approved policy to comply with conditions set 25 out in the order a policy ceases to be an approved policy if it ceases to 26 comply with those conditions. 27 (4) An order may: 28 (a) apply generally or be limited in its application by reference to 29 specified exceptions or factors, or 30 (b) apply differently according to different factors of a specified 31 kind. 32 (5) An order takes effect on the day it is published in the Gazette or on a 33 later date specified in the order. An order may contain provisions of a 34 savings or transitional nature consequent on the making of the order. 35 Page 20

Property, Stock and Business Agents Bill 2001 Clause 16 Licences and certificates of registration Part 2 Eligibility, qualifications and disqualification Division 2 (6) If an order takes effect during the term of a licence, any policy in force 1 in respect of the licensee immediately before the order takes effect that 2 is at that time an approved policy of professional indemnity insurance: 3 (a) is taken to continue to be an approved policy of professional 4 indemnity insurance in relation to the licensee until the expiry 5 of the term of the licence, and 6 (b) is subject to the same conditions to which it was subject 7 immediately before the order took effect. 8 (7) Subsection (6) is subject to any express provision to the contrary 9 contained in the order. 10 Division 3 Application and issue procedure 11 17 Application for licence or certificate of registration 12 (1) An application for a licence or certificate of registration is to be made 13 to the Director-General in a form approved by the Director-General. 14 (2) The application is to be accompanied by: 15 (a) an application fee of an amount prescribed by the regulations, 16 and 17 (b) in the case of an application for a licence, the contribution to 18 the Compensation Fund required to accompany the application, 19 and 20 (c) such information and evidence as the Director-General may 21 request for the purposes of determining the application. 22 (3) The Director-General may require further information and evidence to 23 be given in connection with an application. 24 (4) The Director-General may require the application, and any such 25 information or evidence, to be verified by statutory declaration. 26 (5) An application is not duly made until any requirement under this 27 section is complied with. 28 (6) A person who in an application for a licence or certificate of 29 registration provides information that is false or misleading in a 30 material particular is guilty of an offence. 31 Maximum penalty: 50 penalty units. 32 Page 21

Clause 18 Property, Stock and Business Agents Bill 2001 Part 2 Licences and certificates of registration Division 3 Application and issue procedure 18 Consideration of applications 1 (1) The Director-General may make such inquiries as the Director-General 2 considers necessary in relation to an application. 3 (2) The Commissioner of Police must, if the Director-General so requests, 4 investigate an application and must, as soon as practicable after 5 completing the investigation, make a report on the investigation to the 6 Director-General. 7 19 Determination of applications 8 (1) After considering an application, the Director-General is to determine 9 the application by either granting or refusing the application. 10 (2) The application must not be granted unless the applicant is eligible to 11 be granted the licence or certificate of registration concerned (as 12 provided by section 13). 13 (3) The Director-General must cause notice of the Director-General's 14 decision on an application (including reasons for the decision if the 15 decision is to refuse the application) to be given to the applicant. 16 (4) For the purposes only of any appeal proceedings arising in connection 17 with an application, the Director-General is taken to have refused the 18 application if the Director-General has not determined the application 19 within 8 weeks after the application was duly made. 20 20 Conditions 21 A licence or certificate of registration may be granted subject to 22 conditions, including (but not limited to) conditions of the following 23 kind: 24 (a) a condition prohibiting the holder of a real estate agent's licence 25 or stock and station agent's licence from acting as an auctioneer 26 unless the licensee is accredited by the Director-General as 27 having satisfactorily completed a course of training approved by 28 the Director-General in connection with the conduct of auctions 29 and the functions of auctioneers, 30 (b) a condition prohibiting the holder from exercising functions 31 under the licence or certificate of registration otherwise than as 32 an employee of a licensee whose licence does not contain such 33 a condition, 34 (c) a condition requiring the holder to undertake or complete a 35 specified course of studies within a specified period of time, 36 Page 22

Property, Stock and Business Agents Bill 2001 Clause 20 Licences and certificates of registration Part 2 Application and issue procedure Division 3 (d) a condition requiring a licensee or holder of a certificate of 1 registration to undertake by way of professional development 2 specified further education or training during the term of the 3 licence or certificate of registration, 4 (e) a condition prohibiting the holder from exercising functions 5 under the authority of the licence or certificate of registration in 6 relation to specified activities, or prohibiting the holder from 7 exercising functions under the authority of the licence or 8 certificate of registration except in relation to specified 9 activities. 10 Note. An example of a condition under paragraph (e) is a condition that the holder 11 of a real estate agent's licence act only as a buyer's agent. 12 21 Special conditions for on-site residential property managers and 13 trainees 14 (1) An on-site residential property manager's licence is subject to the 15 condition that the licensee must not carry on business as an on-site 16 residential property manager in respect of premises unless: 17 (a) the licensee's principal place of residence is situated at those 18 premises, and 19 (b) the person owns, or has an interest prescribed by the 20 regulations in, that principal place of residence. 21 Note. This condition prevents a person from being an on-site residential property 22 manager for more than one residential complex. To do that, a person must hold a 23 real estate agent's licence. 24 (2) The certificate of registration of a trainee on-site residential property 25 manager is subject to a condition that the person must not act as or 26 exercise any of the functions of a trainee on-site residential property 27 manager except in respect of premises in which are situated the 28 principal place of residence of the licensee who employs the person. 29 22 Issue of licence or certificate of registration 30 (1) Licences and certificates of registration are issued by the Director- 31 General and are to be in such form and specify such information as the 32 Director-General determines. 33 (2) The Director-General may determine that a licence or certificate of 34 registration is to display a photograph of the holder and for that 35 purpose may require an applicant to provide a photograph or to permit 36 his or her photograph to be taken. 37 Page 23

Clause 22 Property, Stock and Business Agents Bill 2001 Part 2 Licences and certificates of registration Division 3 Application and issue procedure (3) A licence or certificate of registration may be issued to replace one that 1 the Director-General is satisfied has been lost, stolen, damaged or 2 destroyed. The Director-General may require payment of a fee 3 prescribed by the regulations for the issue of a replacement licence or 4 certificate of registration. 5 23 Duration 6 (1) A licence or certificate of registration takes effect on the date on which 7 it is granted or on such later date as may be specified in it and (unless 8 it is sooner suspended or cancelled) remains in force for 1 year. 9 (2) If an application for a licence or certificate of registration is by way of 10 the reissue of an existing licence or certificate of registration, the 11 existing licence or certificate of registration remains in force until the 12 application is determined (even if as a result the existing licence or 13 certificate of registration is in force for more than 1 year). 14 (3) The holder of a licence or certificate of registration may at any time 15 surrender it by notice in writing to the Director-General and the 16 licence is thereby cancelled. 17 24 Reissue and restoration of a licence or certificate of registration 18 (1) Application may be made for the reissue of a licence or certificate of 19 registration during the current term of the licence or certificate of 20 registration. 21 (2) An application for the reissue of a licence or certificate of registration 22 constitutes an application for a new licence or certificate of registration 23 that is the same as the current licence or certificate of registration, with 24 the new licence to take effect on the expiry of the current licence or 25 certificate of registration. 26 (3) If a licence or certificate of registration expires without an application 27 having been made for its reissue, an application may be made for the 28 restoration of the expired licence or certificate or registration but such 29 an application can only be made within 3 months after the expiry of 30 the licence or certificate of registration. 31 (4) The regulations may prescribe a fee as a late application fee to 32 accompany an application for restoration of an expired licence or 33 certificate of registration (in addition to any other fee required to 34 accompany an application for a licence or certificate of registration). 35 Page 24

Property, Stock and Business Agents Bill 2001 Clause 24 Licences and certificates of registration Part 2 Application and issue procedure Division 3 (5) An application for the restoration of an expired licence or certificate of 1 registration constitutes an application for a new licence or certificate 2 of registration that is the same as the expired licence or certificate of 3 registration, with the new licence to be back-dated to take effect on the 4 expiry of the expired licence or certificate of registration. 5 Note. In all other respects applications for reissue or restoration are subject to the 6 same requirements as apply to and in respect of ordinary applications for a licence 7 or certificate of registration. 8 (6) If an application for the restoration of an expired licence or certificate 9 of registration is duly made: 10 (a) anything done by the holder of the expired licence or certificate 11 of registration between its expiry and the determination of the 12 application for restoration (whether the application is granted or 13 refused) is taken to have been done as the holder of a licence or 14 certificate of registration, except for the purposes of 15 sections 7�9, and 16 (b) if the application is granted, the restored licence or certificate of 17 registration is taken to have had effect from the expiry of the 18 expired licence or certificate of registration (and is to be 19 expressed to take effect accordingly). 20 25 Review by ADT 21 A person may apply to the Administrative Decisions Tribunal for a 22 review of any of the following decisions of the Director-General: 23 (a) a decision refusing to grant a licence or certificate of 24 registration to the person (including such a decision pursuant to 25 an application for the reissue or restoration of a licence or 26 certificate of registration), 27 (b) a decision of the Director-General to impose a condition on a 28 licence or certificate of registration of the person. 29 Page 25

Clause 26 Property, Stock and Business Agents Bill 2001 Part 3 General conduct of licensees and registered persons Division 1 Place and name of business Part 3 General conduct of licensees and registered 1 persons 2 Division 1 Place and name of business 3 26 Registered office and address 4 (1) A licensee must have a registered office within New South Wales. 5 (2) The address specified in an application for a licence as the address at 6 which the applicant proposes to carry on business (or, in the case of a 7 corporation carrying on business at more than one place, the address 8 specified in the application as its principal place of business) is taken 9 to be the registered office of the licensee. 10 (3) Notice of any change in the location of the registered office must be 11 lodged by the licensee with the Director-General within the time 12 prescribed by the regulations. 13 (4) Within the period prescribed by the regulations after a person 14 commences employment as, or ceases to be employed as, the person 15 in charge of a place of business of a corporation, the corporation must 16 lodge with the Director-General: 17 (a) a notice specifying the name and address of, and the classes of 18 licence held by, the person so commencing to be employed, or 19 (b) a notice specifying the day upon which that person ceases to be 20 so employed. 21 Maximum penalty: 50 penalty units. 22 27 Display of name at registered office 23 (1) A licensee must display the licensee's name and description as a 24 licensee legibly and conspicuously: 25 (a) outside the licensee's registered office, and 26 (b) outside any other place at which the licensee's business as a 27 licensee is carried on, in a conspicuous position, in letters easily 28 legible and conforming to the type and size of type prescribed. 29 Page 26

Property, Stock and Business Agents Bill 2001 Clause 27 General conduct of licensees and registered persons Part 3 Place and name of business Division 1 (2) In addition, a licensee that is a corporation must display legibly and 1 conspicuously: 2 (a) outside the corporation's registered office, the name of the 3 person in charge of the corporation's registered office, and 4 (b) outside any other place at which the business of the 5 corporation is carried on, the name of the person in charge at 6 that place. 7 (3) A person must not display or exhibit outside or near the person's 8 office, house or place of business any sign or other matter that 9 indicates or implies that the office, house or place of business is that 10 of a person licensed as a kind of agent under this Act unless the person 11 is licensed as an agent of that kind. 12 Maximum penalty: 50 penalty units. 13 28 Business names 14 (1) A licensee must not, either alone or together with other persons, carry 15 on business as a licensee under a name or advertise or hold out that the 16 licensee carries on business as a licensee under a name unless: 17 (a) the name consists of the name of the licensee and the name of 18 each other person, if any, with whom the licensee is carrying 19 on, or advertising or holding out that the licensee is carrying on, 20 business as a licensee, or 21 (b) the Director-General has approved of the licensee carrying on, 22 or advertising or holding out that the licensee carries on, that 23 business as a licensee under that name. 24 (2) The name of a licensee (other than a corporation) consists of the 25 licensee's full name, or the licensee's surname (or family name) 26 together with: 27 (a) the licensee's other name or names, or 28 (b) the initial or initials of the licensee's other name or names, or 29 (c) a combination of one or more of the licensee's other name or 30 names and the initial or initials of the licensee's remaining other 31 name or names, or 32 (d) the other name or names by which the licensee is commonly 33 known or the initial or initials by which the licensee is 34 commonly known or any combination of one or more of those 35 names or initials. 36 Page 27

Clause 28 Property, Stock and Business Agents Bill 2001 Part 3 General conduct of licensees and registered persons Division 1 Place and name of business (3) The name of a licensee that is a corporation consists of the corporate 1 name of the corporation. 2 (4) The Director-General may refuse to approve of a licensee carrying on, 3 or advertising or holding out that the licensee carries on, business as a 4 licensee under a name if: 5 (a) the name is the same as, or is a name closely resembling, the 6 name under which a person whose licence has been cancelled 7 under or in pursuance of this Act was carrying on business 8 immediately before the person's licence was cancelled, or 9 (b) the name implies or is capable of being construed as implying 10 that the licensee is the successor in the business, or in any way 11 interested or concerned in continuing the business as a licensee, 12 of a person whose licence has been cancelled under or in 13 pursuance of this Act, or 14 (c) the name is, in the opinion of the Director-General and in the 15 circumstances of any particular case, undesirable as being 16 contrary to the public interest. 17 (5) This section does not affect the Business Names Act 1962. 18 Division 2 Business practices and supervision 19 29 Each place of business to be in charge of licensee 20 (1) An individual who carries on business under a licence at more than 21 one place of business must employ at each of those places of business 22 (except the place at which the licensee is personally in charge) as the 23 person in charge of business at that place a person who is the holder 24 of a licence that an individual is required to hold to carry on that 25 business. 26 (2) A corporation that holds a corporation licence must employ as the 27 person in charge at each place of business at which the corporation 28 carries on business under the licence a person who is the holder of a 29 licence that an individual is required to hold to carry on that business. 30 (3) A licensee must not employ a person to be the person in charge of 31 business at a place of business of the licensee if the person is also 32 employed to be the person in charge of business at another place of 33 business of the licensee or at a place of business of another licensee. 34 Page 28

Property, Stock and Business Agents Bill 2001 Clause 29 General conduct of licensees and registered persons Part 3 Business practices and supervision Division 2 (4) A person employed as the person in charge of business at a place of 1 business of a licensee must not exercise functions or provide services 2 on behalf of 2 or more licensees at that place (whether corporations or 3 individuals) unless those licensees are in partnership. 4 (5) The Director-General may grant a person an exemption from a 5 provision of this section. The exemption may be granted 6 unconditionally or subject to conditions. The Director-General may at 7 any time by notice in writing to a person granted an exemption revoke 8 the exemption or vary the conditions of the exemption. 9 (6) The regulations may specify the matters to be taken into account by the 10 Director-General in considering whether to grant a person an 11 exemption from a provision of this section. 12 Maximum penalty: 13 (a) 200 penalty units in the case of a corporation, or 14 (b) 100 penalty units in any other case. 15 30 Duty of licensee and person in charge to properly supervise business 16 (1) A licensee must properly supervise the business carried on by the 17 licensee. 18 (2) A licensee employed by another licensee (the principal licensee) as 19 the person in charge of business at a place of business of the principal 20 licensee must properly supervise the business of the principal licensee 21 carried on at that place. 22 (3) The requirement to properly supervise the conduct of business 23 includes the following requirements: 24 (a) a requirement to properly supervise employees engaged in the 25 business, and 26 (b) a requirement to establish procedures designed to ensure that 27 the provisions of this Act and any other laws relevant to the 28 conduct of that business are complied with, and 29 (c) a requirement to monitor the conduct of business in a manner 30 that will ensure as far as practicable that those procedures are 31 complied with. 32 Page 29

Clause 30 Property, Stock and Business Agents Bill 2001 Part 3 General conduct of licensees and registered persons Division 2 Business practices and supervision (4) The Director-General may from time to time issue and notify to 1 licensees guidelines as to what constitutes the proper supervision of the 2 business of a licensee. A failure to comply with the requirements of 3 any such guidelines in connection with the supervision of a business 4 constitutes a failure to properly supervise the business. 5 Maximum penalty: 6 (a) 200 penalty units in the case of a corporation, or 7 (b) 100 penalty units in any other case. 8 31 Licensee not to share commission with certain persons 9 (1) A licensee must not enter into an arrangement with or act in 10 conjunction with a person that the licensee knows to be an unlicensed 11 person (other than an employee in the licensee's business as a licensee) 12 whereby the unlicensed person is entitled to a share of the commission, 13 fee, gain or reward payable to the licensee in respect of any transaction 14 by or with him or her as a licensee or generally. 15 (2) In this section: 16 unlicensed person means a person who is not licensed under this Act 17 or a corresponding Act. 18 Maximum penalty: 19 (a) 100 penalty units in the case of a corporation, or 20 (b) 50 penalty units in any other case. 21 32 Subagency agreements to be in writing 22 (1) An agreement between licensees to share any commission, fee, gain or 23 reward paid or payable to a licensee in respect of any services 24 performed by him or her as a licensee is unenforceable unless the 25 agreement is in writing, is signed by the licensees and contains such 26 terms (if any) as may be prescribed by the regulations. 27 (2) Any provision in, or applying to, such an agreement and purporting to 28 exclude or restrict the operation of the terms (if any) required to be 29 contained in that agreement has no force or effect. 30 (3) A licensee who enters into an agreement that is unenforceable because 31 of this section is guilty of an offence. 32 Maximum penalty: 50 penalty units. 33 Page 30

Property, Stock and Business Agents Bill 2001 Clause 32 General conduct of licensees and registered persons Part 3 Business practices and supervision Division 2 (4) This section does not apply to: 1 (a) an agreement between licensees who are in partnership with 2 one another or in the relationship of employer and employee 3 with one another, or 4 (b) an agreement, transaction, circumstance or person prescribed by 5 the regulations as exempt from this section or an agreement, 6 transaction, circumstance or person of a class or description 7 prescribed by the regulations as exempt from this section. 8 33 Franchising agreements 9 (1) A licensee who enters into a franchising agreement in connection with 10 the conduct of the licensee's business as licensee must give notice of 11 the agreement to the Director-General. The notice must be in the form 12 approved by the Director-General and must be given within 30 days 13 after the agreement is entered into. 14 Maximum penalty: 100 penalty units. 15 (2) The franchisor under a franchising agreement must notify the Director- 16 General in writing within 7 days after becoming aware of any failure 17 to account by a licensee who is a party to the franchising agreement. 18 Maximum penalty: 100 penalty units. 19 (3) The regulations may make provision for or with respect to requiring a 20 party to a franchising agreement to provide specified information to the 21 Director-General in respect of the franchising agreement and activities 22 or other matters connected with the franchising agreement, including 23 (but not limited to): 24 (a) the occurrence of any event that entitles the franchisor to 25 terminate the franchise agreement, and 26 (b) the occurrence of any event that results in the franchisee being 27 unable to meet the franchisee's obligations under the 28 franchising agreement as and when they fall due. 29 (4) In this section: 30 franchising agreement means an agreement whereby a licensee is 31 authorised to carry on business under any name in consideration of any 32 other person entitled to carry on business under that name receiving 33 any consideration whether by way of a share in the profits of the 34 licensee's business or otherwise. 35 Page 31

Clause 33 Property, Stock and Business Agents Bill 2001 Part 3 General conduct of licensees and registered persons Division 2 Business practices and supervision failure to account has the same meaning as in Part 10 (Management 1 and receivership). 2 34 Review of commission and fees 3 (1) An action or other proceedings cannot be commenced by a licensee for 4 the recovery of remuneration or any sum as reimbursement for 5 expenses until the expiration of 28 days after a statement of claim has 6 been served personally or by post on the person to be charged with the 7 remuneration or expenses. 8 (2) The statement of claim must be in writing, set out the amount claimed 9 and contain details of the services performed by the licensee in respect 10 of which the remuneration or expenses are claimed 11 (3) If money has been paid to or is or has been retained by a licensee (out 12 of money received by or paid to the licensee) in respect of any 13 transaction by or with the licensee as a licensee and has been so paid 14 or retained as remuneration or as reimbursement for expenses in 15 connection with the transaction, the person paying the money or the 16 person who would be entitled to the money had the money not been 17 retained, may require the licensee to furnish the person with an 18 itemised account of the transaction in accordance with the regulations. 19 (4) A person who is served with a statement of claim under this section or 20 is provided with an itemised account of a transaction as provided by 21 this section may apply to the Tribunal for the determination of a 22 consumer claim within the meaning of Consumer Claims Act 1998 in 23 relation to: 24 (a) the entitlement of the licensee to the whole or any part of the 25 amount specified in the statement of claim or the itemised 26 account, or 27 (b) whether the whole or any part of the amount is reasonable, 28 or both. 29 (5) For the purpose of the application of the Consumer Claims Act 1998 30 to that person, a reference in that Act to a consumer is taken to 31 include a reference to that person. 32 (6) The Tribunal has jurisdiction to hear and determine any such 33 consumer claim despite: 34 (a) the terms or conditions of any agreement or contract entered 35 into between the licensee and the applicant, and 36 Page 32

Property, Stock and Business Agents Bill 2001 Clause 34 General conduct of licensees and registered persons Part 3 Business practices and supervision Division 2 (b) the amount being more or less than the maximum amount (if 1 any) of remuneration to which a licensee is entitled under this 2 Act. 3 (7) The regulations may make provision for or with respect to requiring 4 the inclusion, in the manner prescribed by the regulations, in a 5 statement of claim or itemised account for the purposes of this section, 6 of a notice, in a form approved by the Director-General, containing 7 advice concerning remedies available under the Consumer Claims 8 Act 1998. 9 (8) This section does not limit the Consumer Claims Act 1998. 10 (9) In this section: 11 expenses means expenses or charges incurred in connection with 12 services performed by a licensee in his or her capacity as a licensee. 13 remuneration means remuneration by way of commission, fee, gain 14 or reward for services performed by a licensee in his or her capacity as 15 a licensee. 16 Tribunal means the Tribunal under the Consumer Claims Act 1998. 17 35 Rules of conduct for licensee's business 18 The regulations may prescribe rules of conduct to be observed in the 19 course of the carrying on of business under a licence. 20 Note. Part 9 (Complaints disciplinary action) provides that a contravention of a 21 provision of the regulations is grounds for taking disciplinary action against a 22 person. 23 36 Undertakings by licensees and registered persons 24 The Director-General may accept a written undertaking from the 25 holder of a licence or certificate of registration as to the manner in 26 which the holder will exercise functions under the licence or 27 certificate of registration. 28 Note. Part 9 provides that a breach of such an undertaking is grounds for taking 29 disciplinary action against a person. 30 37 Duty of licensee to notify defalcation 31 (1) A licensee must notify the Director-General as soon as practicable 32 after becoming aware of any failure to account by the licensee. 33 Maximum penalty: 50 penalty units. 34 Page 33

Clause 37 Property, Stock and Business Agents Bill 2001 Part 3 General conduct of licensees and registered persons Division 2 Business practices and supervision (2) In this section: 1 failure to account has the same meaning as in Part 10 (Management 2 and receivership). 3 Division 3 Employees 4 38 Liability of licensee for acts of employees 5 A licensee who employs a person at any place of business of the 6 licensee is responsible, in tort and in contract, for anything done or not 7 done by the person: 8 (a) within the scope of the employee's authority, or 9 (b) for the benefit, or the purported or intended benefit, of the 10 licensee or the licensee's business. 11 39 Licensee to keep records of certain employees 12 (1) A licensee must make and keep a record of the name and residential 13 address of each employee that the licensee employs as a real estate 14 salesperson, stock and station salesperson, business salesperson or 15 trainee managing agent. 16 (2) The licensee must keep the record for at least 3 years after the person 17 ceases to be an employee. 18 (3) The licensee must keep the record in the form of a register of 19 employees and that register must be kept at the place of business of the 20 licensee at which the employee is employed. 21 Maximum penalty: 50 penalty units. 22 40 Duty of licensee not to employ certain persons 23 (1) A licensee must not employ a person in any capacity in connection 24 with the carrying on of the business conducted by the licensee if the 25 person: 26 (a) is a disqualified person, or 27 (b) has had his or her licence or certificate of registration 28 suspended or cancelled under this Act (unless the person 29 currently holds a licence), or 30 Page 34

Property, Stock and Business Agents Bill 2001 Clause 40 General conduct of licensees and registered persons Part 3 Employees Division 3 (c) has had an application for a licence or certificate of registration 1 refused on the ground that the person was not a fit and proper 2 person to hold a licence or certificate of registration (unless the 3 person currently holds a licence). 4 Maximum penalty: 50 penalty units. 5 (2) It is a defence to a prosecution for an offence under this section if the 6 licensee establishes that the licensee did not know, and could not 7 reasonably be expected to have known after diligent inquiry, that the 8 person was a person whose employment by the licensee was 9 prohibited by this section. 10 41 Duty of licensee to notify disqualification of employee 11 A licensee must notify the Director-General in writing within 7 days 12 after becoming aware that a person employed by the licensee has 13 become a disqualified person. 14 Maximum penalty: 50 penalty units. 15 42 Employees required to notify disqualification 16 A person employed by a licensee must notify the licensee within 7 17 days after the person becomes a disqualified person. 18 Maximum penalty: 50 penalty units. 19 Division 4 Conflicts of interest 20 43 Financial and investment advice by real estate agents 21 (1) The regulations may make provision for or with respect to requiring a 22 real estate agent who provides financial or investment advice to a 23 person in connection with the sale or purchase of land to provide to the 24 person specified information or warnings. 25 (2) A real estate agent who fails to comply with a requirement of the 26 regulations under this section is guilty of an offence. 27 Maximum penalty: 200 penalty units. 28 44 Duty not to act for both buyer and seller of land 29 (1) A licensee must not act in his or her capacity as licensee on behalf of 30 both the buyer and the seller of land at the same time. 31 Page 35

Clause 44 Property, Stock and Business Agents Bill 2001 Part 3 General conduct of licensees and registered persons Division 4 Conflicts of interest (2) A licensee must not enter into agency agreements in respect of the 1 purchase or sale of land if the performance of services by the licensee 2 under the agreements will or can result in the licensee acting in his or 3 her capacity as licensee on behalf of both the buyer and the seller of 4 the land at the same time. 5 Maximum penalty: 6 (a) 200 penalty units in the case of a body corporate, or 7 (b) 100 penalty units in any other case. 8 45 Restrictions on licensee obtaining beneficial interest in property 9 (1) A real estate agent who has been retained by a person (the client) as 10 an agent for the sale of property must not obtain or be in any way 11 concerned in obtaining a beneficial interest in the property. 12 Maximum penalty: 200 penalty units or imprisonment for 2 years, or 13 both. 14 (2) A real estate salesperson employed by the real estate agent must not 15 obtain or be in any way concerned in obtaining a beneficial interest in 16 the property. 17 Maximum penalty: 200 penalty units or imprisonment for 2 years, or 18 both. 19 (3) A person does not contravene this section by obtaining a beneficial 20 interest in property if: 21 (a) before the person obtains the interest, the client consents in 22 writing in a form approved by the Director-General to the 23 person obtaining the interest, and 24 (b) the person acts fairly and reasonably in relation to the obtaining 25 of the interest, and 26 (c) no commission or other reward is payable to the person in 27 relation to the transaction by which the interest is obtained. 28 (4) Without limitation, a person is considered to obtain a beneficial 29 interest in property if: 30 (a) the person or a close relative of the person obtains a beneficial 31 interest in the property, or 32 Page 36

Property, Stock and Business Agents Bill 2001 Clause 45 General conduct of licensees and registered persons Part 3 Conflicts of interest Division 4 (b) a corporation having not less than 100 members and of which 1 the person or a close relative of the person is a member, or a 2 subsidiary of such a corporation, obtains a beneficial interest in 3 the property, or 4 (c) a corporation of which the person or a close relative of the 5 person is an executive officer obtains a beneficial interest in the 6 property, or 7 (d) the trustee of a discretionary trust of which the person or a close 8 relative of the person is a beneficiary obtains a beneficial 9 interest in the property, or 10 (e) a member of a firm or partnership of which the person or a 11 close relative of the person is also a member obtains a 12 beneficial interest in the property, or 13 (f) the person or a close relative of the person has, directly or 14 indirectly, a right to participate in the income or profits of a 15 business carried on for profit or gain and another person 16 carrying on that business obtains a beneficial interest in the 17 property. 18 (5) Without limitation, each of the following is considered to constitute the 19 obtaining of a beneficial interest in property : 20 (a) purchasing property, 21 (b) obtaining an option to purchase property, 22 (c) being granted a general power of appointment in respect of 23 property. 24 (6) In this section: 25 close relative of a person means: 26 (a) a spouse of the person, or 27 (b) a de facto partner who is living or has lived with the person as 28 the person's husband or wife on a bona fide domestic basis 29 although not married to the person, or 30 (c) a child, grandchild, sibling, parent or grandparent of the person, 31 whether derived through paragraph (a) or (b) or otherwise, or 32 (d) any other person who has a relationship with the person that is 33 prescribed by the regulations as constituting the relationship of 34 close relative for the purposes of this section. 35 property includes an interest in property. 36 Page 37

Clause 46 Property, Stock and Business Agents Bill 2001 Part 3 General conduct of licensees and registered persons Division 5 Advertisements and representations Division 5 Advertisements and representations 1 46 Advertisements to include information about licensee 2 (1) A licensee must not publish (in a newspaper or otherwise) an 3 advertisement relating to or in connection with the licensee's business 4 unless the advertisement includes the following: 5 (a) if the licensee is an individual carrying on business in the 6 licensee's own name and is not a member of a partnership--the 7 licensee's name and licence number, 8 (b) if the licensee is an individual carrying on business under a 9 business name registered under any Act relating to the 10 registration of business names--either the licensee's name or 11 that business name, and the licensee's licence number, 12 (c) if the licensee carries on business as a member of a 13 partnership--either the licensee's name or the name of the 14 partnership, or the name under which the partnership is 15 registered under any Act relating to the registration of business 16 names, and the licence number of the licensee or another 17 member of the partnership, 18 (d) if the licensee is a corporation and the corporation is carrying 19 on business in its own name--the name of the corporation and 20 the licence number of the corporation, 21 (e) if the licensee is a corporation and the corporation is carrying 22 on business under a business name registered under any Act 23 relating to the registration of business names--either its own 24 name or that business name, and the licence number of the 25 corporation. 26 (2) If a licensee has an interest in any real or personal property as a 27 principal, the licensee must not publish an advertisement relating to or 28 in connection with the property in a newspaper or otherwise without 29 disclosing that interest in the advertisement. 30 Maximum penalty: 100 penalty units. 31 Page 38

Property, Stock and Business Agents Bill 2001 Clause 47 General conduct of licensees and registered persons Part 3 Advertisements and representations Division 5 47 Publishing false or misleading advertisements 1 (1) A licensee must not publish or cause to be published in the course of 2 carrying on business as a licensee any statement that: 3 (a) is intended or apparently intended by the licensee to promote 4 the sale or lease of any property, and 5 (b) is false, misleading or deceptive (whether to the licensee's 6 knowledge or not). 7 Maximum penalty: 200 penalty units. 8 (2) Without limiting the generality of subsection (1), a statement is taken 9 to be false or misleading for the purposes of this section if it is of such 10 a nature that it would reasonably tend to lead to a belief in the 11 existence of a state of affairs that does not in fact exist, whether or not 12 the statement indicates that the state of affairs does exist. 13 (3) A statement is published if it is: 14 (a) inserted in any newspaper, periodical publication or other 15 publication, or 16 (b) publicly exhibited in, on, over or under any building, vehicle or 17 place (whether or not a public place and whether on land or 18 water), or in the air in view of persons being or passing in or on 19 any street or public place, or 20 (c) contained in any document gratuitously sent or delivered to any 21 person or thrown or left upon premises in the occupation of any 22 person, or 23 (d) broadcast by radio or television, or 24 (e) disseminated by means of an Internet website or electronic 25 mail. 26 (4) It is a defence to a prosecution against a person for an offence under 27 this section if the person proves that: 28 (a) the person took all reasonable precautions against committing 29 the offence, and 30 (b) the person believed on reasonable grounds that the statement 31 was true or (in the case of a statement that would reasonably 32 tend to lead to a belief in the existence of a state of affairs that 33 does not in fact exist) the person believed on reasonable 34 grounds that the state of affairs existed, and 35 Page 39

Clause 47 Property, Stock and Business Agents Bill 2001 Part 3 General conduct of licensees and registered persons Division 5 Advertisements and representations (c) the person had no reason to suspect that the statement was false 1 or misleading. 2 (5) Despite any proceedings against a person for an offence under this 3 section (whether resulting in a conviction or otherwise) the person 4 remains liable to all civil proceedings as if the proceedings for an 5 offence had not been taken. 6 (6) This section is to be read as being in addition to and not in derogation 7 from any enactment or law relating to false or misleading 8 advertisements or other statements. 9 48 Misrepresentation by licensee or registered person 10 (1) A person who, while exercising or performing any function as a person 11 regulated under this Act, by any statement, representation or promise 12 that is false, misleading or deceptive (whether to the knowledge of the 13 person or not) or by any concealment of a material fact (whether 14 intended or not), induces any other person to enter into any contract or 15 arrangement is guilty of an offence against this Act. 16 Maximum penalty: 200 penalty units. 17 (2) Each of the following is a person regulated under this Act: 18 (a) a real estate agent, 19 (b) a stock and station agent, 20 (c) a business agent, 21 (d) a strata managing agent, 22 (e) a community managing agent, 23 (f) an on-site residential property manager, 24 (g) a real estate salesperson, 25 (h) a stock and station salesperson, 26 (i) a business salesperson, 27 (j) a trainee managing agent. 28 (3) Without limiting the generality of subsection (1), a statement, 29 representation or promise is taken to be false, misleading or deceptive 30 if it is of such a nature that it would reasonably tend to lead to a belief 31 in the existence of a state of affairs that does not in fact exist, whether 32 or not the statement, representation or promise indicates that the state 33 of affairs does exist. 34 Page 40

Property, Stock and Business Agents Bill 2001 Clause 48 General conduct of licensees and registered persons Part 3 Advertisements and representations Division 5 (4) It is a sufficient defence to a prosecution for an offence under this 1 section if the defendant proves that the defendant did not know, and 2 had no reasonable cause to suspect, that the statement, representation 3 or promise was false, misleading or deceptive. 4 49 Damages for fraudulent misrepresentation 5 No term or provision of any agreement (whether entered into before or 6 after the commencement of this section) for the sale and purchase of 7 land or any interest in land operates to prevent the purchaser from 8 claiming or being awarded damages or any other relief in respect of 9 any fraudulent misrepresentation in connection with the sale and 10 purchase of the land or interest. 11 Page 41

Clause 50 Property, Stock and Business Agents Bill 2001 Part 4 Agency agreements Division 1 Requirements for agency agreements Part 4 Agency agreements 1 Division 1 Requirements for agency agreements 2 50 Definitions 3 In this Division: 4 commission means remuneration by way of commission, fee, gain or 5 reward for services performed by a licensee in his or her capacity as 6 licensee. 7 expenses means any sum or reimbursement for expenses or charges 8 incurred in connection with services performed by a licensee in the 9 capacity of licensee. 10 51 No entitlement to commission or expenses without agency agreement 11 (1) A licensee is not entitled to any commission or expenses from a 12 person for or in connection with services performed by the licensee in 13 the capacity of licensee for or on behalf of the person unless: 14 (a) the services were performed pursuant to an agreement in 15 writing (an agency agreement) signed by or on behalf of the 16 person and the licensee, and 17 (b) the agency agreement complies with any applicable 18 requirements of the regulations, and 19 (c) a copy of the agency agreement signed by the licensee was 20 served by the licensee on that person within 48 hours after the 21 agreement was signed by or on behalf of the person. 22 (2) The regulations may make provision for or with respect to regulating 23 the form of agency agreements and the terms, conditions and other 24 provisions that an agency agreement must or must not contain. Without 25 limitation, the regulations may prescribe one or more standard forms 26 of agency agreement. 27 (3) Without limiting the means by which a copy of the agency agreement 28 may be served on a person, it may be served by means of facsimile 29 transmission or by such other means as the regulations may allow. 30 Page 42

Property, Stock and Business Agents Bill 2001 Clause 51 Agency agreements Part 4 Requirements for agency agreements Division 1 (4) A court or tribunal before which proceedings are taken by a licensee 1 for the recovery of commission or expenses from a person may order 2 that the commission or expenses are wholly or partly recoverable 3 despite a failure by the licensee to serve a copy of the relevant agency 4 agreement on the person within 48 hours after it was signed by or on 5 behalf of the person. 6 (5) A court or tribunal is not to make such an order unless satisfied that: 7 (a) the failure to serve a copy of the agreement within the required 8 time was occasioned by inadvertence or other cause beyond the 9 control of the licensee, and 10 (b) the commission or expenses that will be recoverable if the 11 order is made are in all the circumstances fair and reasonable, 12 and 13 (c) failure to make the order would be unjust. 14 52 Approved guide to be provided before agency agreement for residential 15 property signed 16 (1) A real estate agent must not enter into an agency agreement with a 17 person for the sale of residential property unless the agent has 18 provided the person with a copy of the approved guide not more than 19 1 month before the agreement is signed by or on behalf of the person. 20 Maximum penalty: 40 penalty units. 21 (2) In this section: 22 approved guide means a guide with respect to the sale of residential 23 property approved by the Director-General from time to time for the 24 purposes of this section. 25 (3) A contravention of this section does not affect the validity of the 26 agency agreement. 27 53 Agency agreement must disclose rebates, discounts and commissions 28 A licensee is not entitled to any expenses from a person for or in 29 connection with services performed by the licensee in the capacity of 30 licensee for or on behalf of the person unless the agency agreement 31 pursuant to which the licensee performs those services contains a 32 statement identifying the source and estimated amount of all rebates, 33 discounts or commissions that the licensee will or may receive in 34 respect of those expenses. 35 Page 43

Clause 54 Property, Stock and Business Agents Bill 2001 Part 4 Agency agreements Division 1 Requirements for agency agreements 54 Prohibition against listing residential or rural land subject to sole or 1 exclusive agency 2 (1) A licensee must not enter into an agency agreement with a person in 3 respect of the sale of residential property or rural land by the person if: 4 (a) the agreement provides for an entitlement to commission in 5 respect of services to be provided at a time when the property 6 or land is or is to be the subject of a sole agency agreement or 7 exclusive agency agreement with another licensee, and 8 (b) the licensee knows or has reasonable cause to suspect that the 9 person has entered into that sole agency agreement or exclusive 10 agency agreement. 11 (2) A licensee must not solicit or encourage a person to enter into an 12 agency agreement with the licensee if the licensee is prohibited from 13 entering into the agreement by this section. 14 Maximum penalty: 15 (a) 200 penalty units in the case of a corporation, or 16 (b) 100 penalty units in any other case. 17 (3) A licensee is not entitled to any commission or expenses from a 18 person for or in connection with services performed by the licensee 19 pursuant to an agency agreement entered into by the licensee in 20 contravention of this section. 21 (4) In this section: 22 commission includes fee, gain and reward. 23 exclusive agency agreement means an agency agreement under which 24 an agent agrees to act for the seller on the sale of property and that 25 provides for the agent to be entitled to commission on the happening 26 of an event whether or not the agent is the effective cause of the 27 happening of the event and whether or not the seller is the effective 28 cause of the happening of the event. 29 sole agency agreement means an agency agreement under which an 30 agent agrees to act for the seller on the sale of property and that 31 provides for the agent to be entitled to commission on the happening 32 of an event (whether or not the agent is the effective cause of the 33 happening of the event) unless the seller is the effective cause of the 34 happening of the event. 35 Page 44

Property, Stock and Business Agents Bill 2001 Clause 55 Agency agreements Part 4 Cooling-off period for residential or rural agency agreements Division 2 Division 2 Cooling-off period for residential or rural agency 1 agreements 2 55 Cooling-off period for residential or rural agency agreements 3 (1) There is to be cooling-off period for every agency agreement in respect 4 of the sale of residential property or rural land. 5 (2) The cooling-off period commences when the agency agreement is 6 signed and ends at 5 pm on the next day that is a business day or a 7 Saturday. 8 (3) An agency agreement is signed when it is signed by or on behalf of the 9 person (the client) for whom services are to be performed under the 10 agreement. If there is more than one client, the agreement is signed 11 when the last client to sign signs the agreement. 12 (4) The cooling-off period may be extended by a provision of the agency 13 agreement, or by the agent in writing before the end of the cooling-off 14 period. 15 56 Agency agreement can be rescinded during cooling-off period 16 (1) The client can rescind an agency agreement by serving a notice of 17 rescission on the agent under the agreement during the cooling-off 18 period for the agreement. 19 (2) To be effective, the notice of rescission must: 20 (a) be in writing addressed to the agent and be to the effect that the 21 client rescinds the agreement, and 22 (b) be signed by the client or the client's solicitor or, if there is 23 more than one client, by each client or their respective 24 solicitors, and 25 (c) be served on the agent in one of the ways provided for by this 26 section. 27 (3) A notice of rescission may be served on an agent in any of the 28 following ways: 29 (a) by being given to the agent personally, 30 (b) by being delivered to or left at a place of business of the agent 31 or at any other address specified in the agency agreement as a 32 place where a notice of rescission may be given, 33 Page 45

Clause 56 Property, Stock and Business Agents Bill 2001 Part 4 Agency agreements Division 2 Cooling-off period for residential or rural agency agreements (c) by facsimile transmission. 1 57 Effect of rescission 2 (1) On service of a notice of rescission, the agency agreement is taken to 3 be rescinded from the time it was entered into. 4 (2) Neither the agent nor the client is liable to pay any sum for 5 commission, damages, costs or expenses for or in connection with the 6 agency agreement or its rescission. 7 (3) The agent must refund to the client any money paid to the agent under 8 a rescinded agency agreement. 9 58 No contracting out 10 A provision of an agency agreement or any other agreement or 11 arrangement is void to the extent that it would (but for this section) 12 have the effect of excluding, modifying or restricting the operation of 13 this Division. 14 Page 46

Property, Stock and Business Agents Bill 2001 Clause 59 Residential property and rural land sales Part 5 Contract for sale of residential property Division 1 Part 5 Residential property and rural land sales 1 Division 1 Contract for sale of residential property 2 59 Proposed contract for sale of residential property 3 (1) In this section: 4 purchaser includes a grantee of an option. 5 (2) A real estate agent must not offer residential property for sale unless 6 the required documents are all available for inspection at the real estate 7 agent's registered office by a prospective purchaser or agent for a 8 prospective purchaser at all times at which an offer to purchase the 9 property may be made (or at such other place or at such other times as 10 may be prescribed by the regulations). 11 (3) A real estate agent is considered to offer residential property for sale 12 when the agent, expressly or by implication: 13 (a) indicates that residential property is for sale or is to be 14 auctioned at any future time, or 15 (b) offers to sell residential property, or 16 (c) invites an offer to purchase residential property, or 17 (d) indicates that a person may be willing to grant an option to 18 purchase residential property. 19 (4) The required documents for the purposes of this section are: 20 (a) a copy of the proposed contract for the sale of the property 21 (excluding particulars of the purchaser and purchase price), and 22 (b) the documents required by section 52A of the Conveyancing 23 Act 1919 to be attached to the contract before signature by the 24 purchaser, and 25 (c) in the case of an option to purchase residential property--a 26 copy of the proposed option document (excluding particulars of 27 the purchaser and consideration for the option). 28 (5) Without limitation, a real estate agent is to be taken to indicate that 29 residential property is for sale if the real estate agent does any of the 30 following or causes or permits any of the following to be done: 31 Page 47

Clause 59 Property, Stock and Business Agents Bill 2001 Part 5 Residential property and rural land sales Division 1 Contract for sale of residential property (a) advertises or promotes the property in any way that, in the 1 circumstances, may reasonably be taken to indicate that the 2 property is or may be for sale, or 3 (b) places a sign on or near the property that, in the circumstances, 4 may reasonably be taken to indicate that the property is or may 5 be for sale, or 6 (c) advertises or in any way gives notice that the property is to be 7 auctioned at any future time, or 8 (d) places on display particulars or a description of, or a 9 photograph, drawing or other representation of, the property in 10 or on any premises, vehicle or place where the real estate agent 11 conducts business as a real estate agent, or 12 (e) shows the property to a prospective purchaser or gives the 13 address of the property to a prospective purchaser. 14 (6) This section does not apply to anything done by a real estate agent 15 when acting on behalf of a prospective purchaser of residential 16 property. 17 (7) The regulations may create exceptions to this section. 18 Maximum penalty: 100 penalty units. 19 60 Contracts for sale of residential property 20 (1) A real estate agent may do any of the following: 21 (a) fill up a proposed contract for the sale of residential property, 22 by inserting details of the purchaser's name, address and 23 description, the purchaser's solicitor's name and address, the 24 purchase price and the date, 25 (b) insert in or delete from a contract for the sale of residential 26 property any description of any furnishings or chattels to be 27 included in the sale of the property, or 28 (c) participate in the exchange or making of contracts for the sale 29 of residential property. 30 (2) If a prospective party to a proposed contract for the sale of residential 31 property for whom a real estate agent acts in relation to the exchange 32 or making of the contract notifies the real estate agent, or it is apparent 33 from the proposed contract, that a solicitor is or will be acting for the 34 party, the real estate agent may not participate in the exchange or 35 Page 48

Property, Stock and Business Agents Bill 2001 Clause 60 Residential property and rural land sales Part 5 Contract for sale of residential property Division 1 making of the contract unless expressly authorised to do so by the 1 party or the solicitor. A contract is not invalid merely because of the 2 failure of a real estate agent to comply with this subsection. 3 (3) A real estate agent who exercises any function pursuant to this section 4 on behalf of any person who is a party or a prospective party to any 5 contract or proposed contract is liable to compensate that person for 6 any loss, damage or expense suffered or incurred by that person as a 7 result of any negligent act or omission, or any unauthorised action, of 8 the real estate agent in the exercise of that function. 9 (4) A real estate agent may not charge a fee for anything authorised to be 10 done under this section. 11 (5) This section does not affect the existence or nature of any other 12 functions or responsibilities of licensees that exist or may exist apart 13 from this section. 14 (6) In this section: 15 solicitor includes a licensee under the Conveyancers Licensing 16 Act 1995. 17 61 Procedure following rescission 18 (1) If a contract for the sale of residential property or an option for the 19 purchase of residential property is rescinded under Division 8 or 9 of 20 Part 4 of the Conveyancing Act 1919, and a real estate agent who 21 holds money paid by the purchaser by way of deposit under or in 22 relation to the contract or the proposed contract attached to the option 23 is authorised to deal with that money as provided by this section. 24 (2) The real estate agent is authorised to pay to the vendor so much of the 25 money as does not exceed the amount (if any) forfeited under section 26 66V or 66ZE of that Act, and receipt by the real estate agent of the 27 original or a copy of an effective notice of rescission served by the 28 purchaser under section 66U or 66ZD of that Act is sufficient 29 authority for the real estate agent to make the payment to the vendor. 30 (3) The regulations may make provision for or with respect to authorising 31 the real estate agent to pay to the purchaser the balance of the money. 32 (4) In this section: 33 deposit includes any amount paid by the purchaser in relation to the 34 contract or the proposed contract attached to the option or on account 35 of the purchase price of residential property. 36 Page 49

Clause 61 Property, Stock and Business Agents Bill 2001 Part 5 Residential property and rural land sales Division 1 Contract for sale of residential property purchaser includes a prospective purchaser and a grantee or 1 prospective grantee of an option. 2 Division 2 Bidding at auction of residential property or rural 3 land 4 62 Restrictions on bidding by or on behalf of seller or auctioneer 5 (1) A sale by auction of residential property or rural land must be notified 6 in the conditions of sale to be subject to the right by the seller or by 7 any person on behalf of the seller or auctioneer to make 1 bid (and 8 only 1 bid). 9 (2) At a sale by auction of residential property or rural land: 10 (a) the seller or any person on behalf of the seller or auctioneer 11 must not bid unless the right to bid has been notified in the 12 conditions of sale, and 13 (b) the seller or any person on behalf of the seller or auctioneer 14 must not make more than one bid and must not make any bid 15 if one of them has already bid, and 16 (c) the auctioneer must not take from the seller or any person on 17 behalf of the seller or auctioneer any bid knowing that the bid 18 is in contravention of this section. 19 Maximum penalty: 50 penalty units. 20 63 Bids may only be taken from registered bidders 21 (1) The auctioneer at a sale by auction of residential property or rural land 22 must not take a bid from a person unless: 23 (a) the relevant details of the person have been entered before the 24 bid is taken in a Bidders Record made in respect of the auction 25 in accordance with section 64, and the auctioneer is in 26 possession of that record when the bid is taken, and 27 (b) the person is identified at the auction by the person displaying 28 an identifying number allocated to the person for the purposes 29 of the auction and recorded in the Bidders Record as the 30 identifying number allocated to the person. 31 Maximum penalty: 50 penalty units. 32 Page 50

Property, Stock and Business Agents Bill 2001 Clause 63 Residential property and rural land sales Part 5 Bidding at auction of residential property or rural land Division 2 (2) An auctioneer who refuses to take a bid from a person pursuant to a 1 requirement under this Division does not incur a liability to any person 2 as a result of that refusal. 3 64 Bidders Record 4 (1) Before residential property or rural land is offered for sale by auction, 5 a record (the Bidders Record) must be made of the persons who will 6 be entitled to bid at the auction and there must be entered in the 7 Bidders Record in respect of each of those persons: 8 (a) the relevant details of the person, and 9 (b) the identifying number allocated to the person for the purposes 10 of identifying the person at the auction, and 11 (c) such other information as the regulations may require. 12 (2) The relevant details of a person are: 13 (a) the person's name and address and the number or other 14 identifier of proof of identity for that person, and 15 (b) in addition, in the case of a person bidding on behalf of another 16 person, the name and address of that other person and the 17 number or other identifier of proof of identity for that other 18 person. 19 (3) A real estate agent engaged to act in respect of the sale of residential 20 property or rural land by auction is responsible for making the Bidders 21 Record for the auction unless some other agent engaged to act in 22 respect of the sale or acting for or on behalf of the auctioneer has made 23 the Bidders Record for the auction. 24 (4) An agent is to keep a Bidders Record made by the agent for at least 3 25 years and is to keep all the Bidders Records made by the agent 26 together, in the form of a Register of Bidders Records. 27 (5) When residential property or rural land is to be offered for sale by 28 auction or is sold by auction, the agent who makes a Bidders Record 29 for the auction must, at the request of the seller, permit the seller to 30 inspect and take notes from the Bidders Record. Such a request may 31 be made before or after the auction. 32 (6) The regulations may make provision for or with respect to the manner 33 and form in which a Bidders Record is to be made and kept. 34 Maximum penalty: 50 penalty units. 35 Page 51

Clause 65 Property, Stock and Business Agents Bill 2001 Part 5 Residential property and rural land sales Division 2 Bidding at auction of residential property or rural land 65 Details to be established by proof of identity 1 (1) An agent must not enter a person's name and address in a Bidders 2 Record unless those details are established by the production to the 3 agent of: 4 (a) proof of identity for the person, or 5 (b) in the case of the details of a person on whose behalf another 6 person is to bid, a letter of authority to bid on the person's 7 behalf specifying the person's name and address and the 8 number or other identifier of proof of identity for that person. 9 Maximum penalty: 50 penalty units. 10 (2) The only proof of identity that may be used for a person for the 11 purposes of an entry in a Bidders Record is: 12 (a) a motor vehicle driver's licence issued in Australia that 13 displays a photograph of the person, or 14 (b) an Australian passport, or 15 (c) such other proof of identity as may be prescribed by the 16 regulations. 17 (3) An agent must not enter the relevant details of a person in a Bidders 18 Record if the agent knows or has reasonable cause to suspect that the 19 details are false in a material particular. 20 Maximum penalty: 50 penalty units. 21 66 Confidentiality of Bidders Record 22 (1) An agent who makes a Bidders Record, and any auctioneer to whom 23 the contents of a Bidders Record are disclosed under this Division, 24 must not: 25 (a) divulge any information that the Bidders Record contains 26 except as authorised or required by this Division, and 27 (b) must not use the Bidders Record or the information that it 28 contains for any purpose not authorised by this Division. 29 Maximum penalty: 50 penalty units. 30 (2) This section does not prevent the divulging of information to an 31 authorised officer in accordance with a requirement imposed by or 32 under this Act. 33 Page 52

Property, Stock and Business Agents Bill 2001 Clause 67 Residential property and rural land sales Part 5 Bidding at auction of residential property or rural land Division 2 67 Approved consumer education guide for bidders at auctions 1 (1) The Director-General may from time to time approve a consumer 2 education guide for prospective bidders at an auction of residential 3 property or rural land. 4 (2) A real estate agent engaged to act in respect of the sale by auction of 5 residential property or rural land must ensure that a person who bids 6 at the auction has been provided before the auction with a copy of the 7 consumer education guide currently approved under this section. 8 Maximum penalty: 40 penalty units. 9 Division 3 Representations as to selling price of residential 10 property 11 68 False representation to seller or prospective seller 12 A real estate agent or employee of a real estate agent must not make a 13 false representation to a seller or prospective seller of residential 14 property as to the agent's or employee's true estimate of the selling 15 price of the property. 16 Maximum penalty: 100 penalty units. 17 69 False representation to prospective buyer 18 (1) A real estate agent acting pursuant to an agency agreement for the sale 19 of residential property or the employee of such an agent must not, by 20 a statement made in the course of marketing the property falsely 21 understate the estimated selling price of the property. 22 Maximum penalty: 100 penalty units. 23 (2) A real estate agent acting pursuant to an agency agreement for the sale 24 of residential property or the employee of such an agent must not, by 25 a statement made in the course of marketing the property make a 26 statement that indicates the price at which it is thought bidding at an 27 auction of the property will start. 28 Maximum penalty: 100 penalty units. 29 (3) An agent or employee is considered to falsely understate the estimated 30 selling price of residential property if the agent or employee states as 31 his or her estimate of that selling price a price that is less than his or 32 her true estimate of that selling price. 33 Page 53

Clause 69 Property, Stock and Business Agents Bill 2001 Part 5 Residential property and rural land sales Division 3 Representations as to selling price of residential property (4) A statement is considered to be made in the course of marketing 1 residential property if the statement is made: 2 (a) in an advertisement in respect of the property that is published 3 or caused to be published by the agent, or 4 (b) to a person (orally or in writing) as a prospective purchaser of 5 the property. 6 (5) A statement in the agency agreement of the agent's estimate of the 7 selling price of residential property is evidence for the purposes of this 8 section of the agent's true estimate of that selling price. 9 70 Requirement to substantiate selling price estimates--residential 10 property 11 (1) The Director-General may by notice in writing to a real estate agent 12 require the agent to provide evidence of the reasonableness of any 13 estimate of the selling price of residential property made by the agent 14 in a statement: 15 (a) orally or in writing to a seller or prospective seller of the 16 property, or 17 (b) in an advertisement in respect of the property that is published 18 or caused to be published by the agent, or 19 (c) orally or in writing to a person as a prospective purchaser of the 20 property. 21 (2) A real estate agent who fails to comply with a notice under this section 22 within the period for compliance specified in the notice is guilty of an 23 offence. 24 Maximum penalty: 100 penalty units. 25 71 Division extends to estimates of price range 26 This Division extends to estimated price range in the same way as it 27 applies to estimated price and for that purpose a reference in this 28 Division to price is taken to include a reference to price range. 29 72 Extended meaning of "estimate" 30 In this Division, estimate includes opinion and belief. 31 Page 54

Property, Stock and Business Agents Bill 2001 Clause 73 Auctions--general Part 6 Part 6 Auctions--general 1 73 Collusive practices at auction sales 2 (1) A person must not, in relation to the sale by auction of any land or 3 livestock, by a collusive practice induce or attempt to induce any other 4 person: 5 (a) to abstain from bidding generally, or 6 (b) to abstain from bidding for any particular lot, or 7 (c) to bid to a limited extent only, or 8 (d) to do any other act or thing that might in any way prevent or 9 tend to prevent free and open competition. 10 Maximum penalty: 11 (e) 200 penalty units in the case of a corporation, or 12 (f) 100 penalty units in any other case. 13 (2) A person must not as a result of a collusive practice, at a sale by 14 auction of any land or livestock: 15 (a) abstain or agree to abstain from bidding generally, or 16 (b) abstain or agree to abstain from bidding for any particular lot, 17 or 18 (c) bid or agree to bid to a limited extent only, or 19 (d) do or agree to do any other act or thing that might in any way 20 prevent or tend to prevent free and open competition. 21 Maximum penalty: 22 (e) 200 penalty units in the case of a corporation, or 23 (f) 100 penalty units in any other case. 24 (3) An auctioneer must not sell by auction any land or livestock unless 25 notice is given prior to the auction, in such manner and in such terms 26 as may be prescribed by the regulations of the material parts of this 27 section. 28 Maximum penalty: 20 penalty units. 29 Page 55

Clause 73 Property, Stock and Business Agents Bill 2001 Part 6 Auctions--general (4) In this section: 1 collusive practice means a promise, express or implied, made by a 2 person that the person will if the person is the successful bidder at 3 auction for land or livestock: 4 (a) give the person to whom the promise is made the right to elect 5 to take over as purchaser through the auctioneer all or any of 6 the land or livestock at the auction price, or 7 (b) that the ownership of all or any of the land or livestock will be 8 determined by tossing or the drawing of lots or any other 9 method. 10 74 False entry in auction record 11 (1) An auctioneer or an employee of an auctioneer must not knowingly 12 enter in any record kept or required to be kept by the auctioneer as the 13 purchaser of any land or livestock sold by auction any name other than 14 the name of the actual successful bidder of the land or livestock. 15 Maximum penalty for a first offence: In the case of a corporation, 50 16 penalty units or, in the case of an individual, 20 penalty units. 17 Maximum penalty for a second or subsequent offence: In the case of 18 a corporation, 100 penalty units or, in the case of an individual, 50 19 penalty units. 20 (2) Any auctioneer who employs any person, being a person who enters, 21 in any record required to be kept by the auctioneer, as the purchaser of 22 any land or livestock sold by auction any name other than the name of 23 the actual successful bidder for the land or livestock, is guilty of an 24 offence unless the auctioneer establishes that the auctioneer did not 25 know that a name other than the name of the actual successful bidder 26 was entered. 27 Maximum penalty for a first offence: In the case of a corporation, 50 28 penalty units or, in the case of an individual, 20 penalty units. 29 Maximum penalty for a second or subsequent offence: In the case of 30 a corporation, 100 penalty units or, in the case of an individual, 50 31 penalty units. 32 (3) If the actual successful bidder at a sale by auction of any land or 33 livestock, as soon as practicable after the auctioneer conducting the 34 sale has indicated the actual successful bidder but not in any case later 35 than the day of the sale, informs the auctioneer that the bidder bid on 36 Page 56

Property, Stock and Business Agents Bill 2001 Clause 74 Auctions--general Part 6 behalf of another person and informs the auctioneer of the name of that 1 person, the auctioneer or employee is not guilty of an offence under 2 this section by reason of the name of that other person being entered 3 in a record as purchaser of the land or livestock. 4 75 Misrepresentation as to quality etc 5 An auctioneer must not knowingly misrepresent, or cause or permit to 6 be misrepresented, the value, composition, structure, character or 7 quality, or the origin of manufacture, of any land or livestock put up 8 for sale at a sale by auction conducted by the auctioneer. 9 Maximum penalty: 50 penalty units. 10 76 Restrictions on bidding by or on behalf of seller or auctioneer of 11 livestock 12 (1) A sale by auction of livestock may be notified in the conditions of sale 13 to be subject to the right by the seller or by any person on behalf of the 14 seller or auctioneer to make 1 bid or a specified number of bids. 15 (2) At a sale by auction of livestock: 16 (a) the seller or any person on behalf of the seller or auctioneer 17 must not bid unless the right to bid has been notified in the 18 conditions of sale, and 19 (b) the seller or any person on behalf of the seller or auctioneer 20 must not make more than the number of bids notified in the 21 conditions of sale, and 22 (c) the auctioneer must not take from the seller or any person on 23 behalf of the seller or auctioneer any bid knowing that the bid 24 is in contravention of this section. 25 Maximum penalty: 50 penalty units. 26 77 Contracting out of prescribed terms and conditions of auction sales 27 (1) Any provision in, or applying to, an agreement for the sale of property 28 by auction and purporting to exclude or restrict (otherwise than in 29 accordance with this or any other Act) the operation of any conditions 30 prescribed as being applicable to or in respect of the sale by auction of 31 that property or property of that class or description is void. 32 Page 57

Clause 77 Property, Stock and Business Agents Bill 2001 Part 6 Auctions--general (2) A person must not notify or cause to be notified in the conditions of 1 sale by auction of any property any provision purporting to exclude or 2 restrict any conditions prescribed as applicable to or in respect of the 3 sale by auction of that property or property of that class or description. 4 Maximum penalty: 50 penalty units. 5 (3) In this section: 6 property means land or livestock. 7 78 Successful bidder at auction to supply information 8 (1) The actual successful bidder at a sale by auction of any land or 9 livestock must, as soon as practicable after the auctioneer conducting 10 the sale has indicated the actual successful bidder but not in any case 11 later than the day of the sale, supply to the auctioneer or an employee 12 of the auctioneer: 13 (a) the bidder's name if the bidder bid on his or her own behalf, or 14 (b) the name of the person on whose behalf the bidder bid if the 15 bidder bid on behalf of another person--the name of the 16 person on whose behalf he or she bid. 17 Maximum penalty: 20 penalty units. 18 (2) An auctioneer must not sell by auction any land or livestock unless 19 notice is given, in such manner and in such terms as may be 20 prescribed by the regulations, of the material parts of this section. 21 Maximum penalty: 20 penalty units. 22 79 Livestock auctions--"comeback" prohibited 23 (1) An auctioneer must not, at an auction for the sale of livestock, sell by 24 auction any lot for a price lower than any price bid in relation to the 25 sale of that lot. 26 (2) For the purposes of this section, a price is bid if it is called by a 27 prospective purchaser or is attributed to a prospective purchaser by the 28 auctioneer as being the amount of a bid, and is not withdrawn by the 29 prospective purchaser prior to the sale of that lot. 30 Page 58

Property, Stock and Business Agents Bill 2001 Clause 80 Trust accounts Part 7 Preliminary Division 1 Part 7 Trust accounts 1 Division 1 Preliminary 2 80 Interpretation 3 (1) In this Part: 4 trust money means money received for or on behalf of any person by 5 a licensee. 6 (2) A reference in this Part to a licensee includes a reference to a person 7 who has ceased to be a licensee and to the personal representative of 8 a licensee who has died, and in the application of this Part to: 9 (a) a person who has ceased to be a licensee, a reference to 10 moneys received for or on behalf of a person by a licensee is to 11 be read as a reference to moneys received by that person for or 12 on behalf of any other person in connection with his or her 13 business as a licensee, and 14 (b) the personal representative of a licensee who has died, a 15 reference to moneys received for or on behalf of a person by a 16 licensee is to be read as a reference to moneys received by that 17 licensee or personal representative for or on behalf of a person 18 in connection with the business carried on by that licensee. 19 Division 2 Payment of trust money into trust account 20 81 Trust money to be paid to trust account 21 (1) Money received for or on behalf of any person by a licensee: 22 (a) is to be held by the licensee or (if the licensee is employed by 23 a corporation) by the corporation, exclusively for that person, 24 and 25 (b) is to be paid to the person or disbursed as the person directs, 26 and 27 (c) until so paid or disbursed is to be paid into and retained in a 28 trust account (whether general or separate) at an authorised 29 deposit-taking institution in New South Wales and approved by 30 the Director-General for the purposes of this Part. 31 Page 59

Clause 81 Property, Stock and Business Agents Bill 2001 Part 7 Trust accounts Division 2 Payment of trust money into trust account (2) If the licence is held by a corporation, the trust account is to be in the 1 name of the corporation and in any other case is be in the name of the 2 licensee or of the firm of licensees of which the licensee is a member. 3 (3) The words "Trust Account" are to appear in the name of the trust 4 account and in the description of the trust account in the books and 5 records of the licensee and also on all cheques drawn on the trust 6 account. 7 (4) When opening a trust account at an authorised deposit-taking 8 institution for the purpose of complying with this section, the licensee 9 concerned must ensure that the authorised deposit-taking institution is 10 notified in writing that the account is a trust account required by this 11 Act. 12 (5) A licensee must, within 14 days after closing a trust account, notify the 13 Director-General in writing of the closure. 14 Maximum penalty: 100 penalty units. 15 82 Approval of authorised deposit-taking institutions 16 (1) The Director-General may approve an authorised deposit-taking 17 institution for the purposes of this Part and may revoke any such 18 approval by notice in writing to the authorised deposit-taking 19 institution. 20 (2) The Director-General is not to approve an authorised deposit-taking 21 institution for the purposes of this Part unless satisfied that the 22 institution is able to discharge the obligations of an authorised deposit- 23 taking institution under this Part. 24 83 Trust money not available to pay licensee's debts 25 (1) Trust money is not available for the payment of the debts of the 26 licensee to any other creditor of the licensee, or liable to be attached or 27 taken in execution under the order or process of any court at the 28 instance of any other creditor of the licensee. 29 (2) This section does not take away or affect any just claim or lien that any 30 licensee may have against or upon trust money. 31 84 Licensee to notify trust account becoming overdrawn 32 A licensee must, within 5 days after becoming aware that a trust 33 account of the licensee has become overdrawn, notify the 34 Director-General in writing of: 35 Page 60

Property, Stock and Business Agents Bill 2001 Clause 84 Trust accounts Part 7 Payment of trust money into trust account Division 2 (a) the name and number of the account, and 1 (b) the amount by which the account is overdrawn, and 2 (c) the reason for the account becoming overdrawn. 3 Maximum penalty: 100 penalty units. 4 85 Interest earned on trust accounts to be paid to Statutory Interest 5 Account 6 (1) On the first business day after the end of each named month, each 7 authorised deposit-taking institution must: 8 (a) calculate interest on the daily balances of all money held during 9 the month in trust accounts kept with the authorised deposit- 10 taking institution (being trust accounts notified to the 11 institution as trust accounts required by this Act) by applying to 12 those balances the prescribed percentage of the trust account 13 rate applicable to the institution for the purposes of this section, 14 and 15 (b) pay the amount of that interest to the Director-General for 16 crediting to the Statutory Interest Account. 17 Maximum penalty: 100 penalty units. 18 (2) The Minister is required to determine from time to time for the 19 purposes of this section, after consultation with the Treasurer, a trust 20 account rate for each authorised deposit-taking institution. The rate 21 may be a fixed or variable rate and is to be determined by reference to 22 an interest rate that applies in the short term money market. 23 (3) As soon as practicable after determining a trust account rate for an 24 authorised deposit-taking institution, the Minister must inform the 25 authorised deposit-taking institution of the rate by notice in writing and 26 publish a notice of the rate in the Gazette. 27 (4) The prescribed percentage for the purposes of this section is 60 per 28 cent or such other percentage as the Minister may, from time to time, 29 determine after consultation with the Treasurer and notify by order 30 published in the Gazette. 31 (5) An authorised deposit-taking institution must not deduct transaction or 32 other charges, other than statutory charges (such as account debits tax), 33 from the balances referred to in subsection (1) or from an amount of 34 interest calculated under that subsection. 35 Page 61

Clause 85 Property, Stock and Business Agents Bill 2001 Part 7 Trust accounts Division 2 Payment of trust money into trust account (6) The Director-General may, by proceedings brought in a court of 1 competent jurisdiction, recover as a debt an amount due and payable 2 to the Director-General under this section. 3 (7) This section does not apply to: 4 (a) a separate trust account kept on the instructions of a client of a 5 licensee or a firm of licensees for the exclusive benefit of the 6 client (not being a separate trust account kept as a sub-account 7 of a general trust account), or 8 (b) to a trust account of a class of trust accounts prescribed by the 9 regulations as exempt from this section. 10 Division 3 Responsibilities of authorised deposit-taking 11 financial institutions 12 86 Institutions to provide Director-General with certain information 13 (1) Within 14 days after the end of each named month, an authorised 14 deposit-taking institution must notify the Director-General in writing 15 of the following matters with respect to the trust accounts that are 16 opened with the institution under this Part during the month: 17 (a) the number of those trust accounts that were opened with the 18 institution during the month, 19 (b) the names of the licensees who opened those accounts, 20 (c) the names and numbers of those accounts and the addresses of 21 the branches of that institution at which those accounts are kept. 22 Maximum penalty: 100 penalty units. 23 (2) The regulations may: 24 (a) require authorised deposit-taking institutions to provide the 25 Director-General with such information relating to all or any 26 trust accounts as is specified or described in the regulations, and 27 (b) authorise the Director-General to require an authorised 28 deposit-taking institution to provide the Director-General with 29 such information relating to trust accounts identified by the 30 Director-General as is specified or described by the 31 Director-General, and 32 Page 62

Property, Stock and Business Agents Bill 2001 Clause 86 Trust accounts Part 7 Responsibilities of authorised deposit-taking financial institutions Division 3 (c) make provision for or with respect to any associated matter, 1 including the manner in which, and the time within which, any 2 such information is to be provided to the Director-General. 3 (3) This section has effect irrespective of any other law or any rule of 4 practice to the contrary. 5 (4) This section does not apply to: 6 (a) a separate trust account kept on the instructions of a client of a 7 licensee or a firm of licensees for the exclusive benefit of the 8 client (not being a separate trust account kept as a sub-account 9 of a general trust account), or 10 (b) to a trust account of a class of trust accounts prescribed by the 11 regulations as exempt from this section. 12 87 Closure of trust accounts 13 Within 14 days after the end of each month, an authorised deposit- 14 taking institution must, by notice in writing, inform the 15 Director-General of the following if a trust account kept with it under 16 this Part was closed during the month: 17 (a) the name and number of the account, 18 (b) the date on which the account was closed. 19 Maximum penalty: 100 penalty units. 20 88 Overdrawn trust accounts 21 When an authorised deposit-taking institution becomes aware that a 22 trust account kept with it under this Part is overdrawn, the institution 23 must as soon as practicable (and in any case within 5 business days) 24 after becoming so aware inform the Director-General of the following 25 by notice in writing: 26 (a) the name and business address of the licensee concerned, and 27 (b) the name and number of the account, and 28 (c) the date on which the account became overdrawn, and 29 (d) the amount by which the account is overdrawn. 30 Maximum penalty: 100 penalty units. 31 Page 63

Clause 89 Property, Stock and Business Agents Bill 2001 Part 7 Trust accounts Division 3 Responsibilities of authorised deposit-taking financial institutions 89 Dishonoured cheques 1 Within 5 business days of an authorised deposit-taking institution 2 becoming aware that a cheque presented on a trust account kept with 3 it under this Part has been dishonoured, the institution must, by notice 4 in writing, inform the Director-General of the following: 5 (a) the name and number of the account, 6 (b) the amount of the dishonour, 7 (c) the date on which the cheque was dishonoured. 8 Maximum penalty: 100 penalty units. 9 90 Monthly certification 10 Within 14 days of the end of each month, an authorised deposit taking 11 institution must provide a written report to the Director-General, 12 certified as correct by the institution, containing the following 13 information in relation to trust accounts kept by it under this Part 14 during the month: 15 (a) the name of the institution and its branch number or its BSB 16 number, 17 (b) the period to which the report relates, 18 (c) the name of each account, 19 (d) the number of each account, 20 (e) the end of month balance for each account (including any nil or 21 overdrawn balances), 22 (f) the interest earned on each account during the month, 23 (g) the interest rate applied to calculate the interest earned on each 24 account during the month, 25 (h) the total amount of interest that the institution paid under this 26 Part to the Director-General during the month in respect of the 27 accounts for crediting to the Statutory Interest Account. 28 Maximum penalty: 100 penalty units. 29 Page 64

Property, Stock and Business Agents Bill 2001 Clause 91 Trust accounts Part 7 Responsibilities of authorised deposit-taking financial institutions Division 3 91 Annual certification by auditor 1 Not later than 31 May in each year, an authorised deposit-taking 2 institution approved for the purposes of this Part must provide to the 3 Director-General a certificate given by a registered company auditor 4 (within the meaning of the Corporations Act) certifying as to the 5 following: 6 (a) that the institution has complied with the requirements of this 7 Part in relation to trust accounts kept by it under this Part 8 during the 12 month period ending on 30 April immediately 9 preceding that 31 May, 10 (b) the total amount of interest that the institution paid under this 11 Part to the Director-General during that 12 month period in 12 respect of those trust accounts for crediting to the Statutory 13 Interest Account. 14 Maximum penalty: 100 penalty units. 15 92 Protection of authorised deposit-taking institutions from liability 16 (1) An authorised deposit-taking institution: 17 (a) does not incur liability, and is not obliged to make inquiries, in 18 relation to any transaction concerning an account of a licensee 19 kept with the institution or with some other financial 20 institution, and 21 (b) is, in relation to any such transaction, taken not to have any 22 knowledge of a right of any person to money credited to such 23 an account, 24 unless it would incur such a liability, be obliged to make such 25 inquiries or be taken to have that knowledge in relation to an account 26 kept with it in respect of a person absolutely entitled to the money held 27 in that account. 28 (2) This section does not relieve an authorised deposit-taking institution 29 from any liability or obligation that it would have apart from this Act. 30 (3) An authorised deposit-taking institution at which a licensee keeps an 31 account for clients' money does not, as regards any liability that the 32 licensee has to the institution (other than a liability relating to that 33 account), have a right to any of the money held in that account, 34 whether by way of set-off, counterclaim, charge or otherwise. 35 Page 65

Clause 93 Property, Stock and Business Agents Bill 2001 Part 7 Trust accounts Division 4 Unclaimed trust money Division 4 Unclaimed trust money 1 93 Unclaimed trust money held by licensee 2 (1) A licensee who in the month of January in a year holds in a trust 3 account kept by the licensee money that was received by the licensee 4 more than 2 years before that month must furnish to the 5 Director-General in that month a statement (an unclaimed money 6 statement) showing particulars of: 7 (a) the money so held, and 8 (b) each person for whom or on whose behalf the money is held, 9 and 10 (c) the address of each of those persons last known to the licensee. 11 (2) A statement under this section is to be in the form approved by the 12 Director-General. 13 94 Unclaimed trust money held by former licensee or personal 14 representative 15 (1) A former licensee, or the personal representative of a deceased 16 licensee, who holds money in a trust account kept under this Act must 17 furnish to the Director-General a statement giving particulars of: 18 (a) the money held in the trust account as at the date on which the 19 statement is furnished, and 20 (b) the names of the persons for whom or on whose behalf the 21 money is held, and 22 (c) the address of each of those persons last known to the person 23 furnishing the statement. 24 (2) This statement is the first statement that the former licensee or 25 personal representative is required to furnish and it is to be furnished 26 within 3 months after the date on which the person ceased to be a 27 licensee or became the personal representative of the deceased 28 licensee. 29 (3) The former licensee or personal representative must furnish a further 30 statement (an unclaimed money statement) within 14 days after the 31 period of 12 months has elapsed since the first statement was 32 furnished. 33 Page 66

Property, Stock and Business Agents Bill 2001 Clause 94 Trust accounts Part 7 Unclaimed trust money Division 4 (4) The further statement is to give particulars of the same matters as the 1 first statement and also include particulars of any payments made from 2 the trust account since the date of the first statement. 3 (5) A statement under this section is to be in the form approved by the 4 Director-General. 5 (6) The regulations may exempt money or a class of money from the 6 operation of this section. 7 95 Disposal of unclaimed money in trust accounts 8 (1) When the Director-General receives an unclaimed money statement 9 under this Division, the Director-General is to: 10 (a) send by post to each person for whom or on whose behalf any 11 money referred to in the statement is held a notice (an 12 individual notice) in writing addressed to the person at the 13 person's address shown in the statement stating the particulars 14 of the moneys held for or on behalf of that person, and 15 (b) cause notification to be published in the Gazette (a Gazette 16 notification) stating the particulars of the money held for or on 17 behalf of each of those persons. 18 (2) Each individual notice and the Gazette notification is to state that, if 19 the money is not paid out of the trust account in which it is held within 20 3 months after the date of publication of the Gazette notice, the person 21 holding the money will be required to pay it to the Director-General. 22 (3) At any time after the expiration of that 3 months the Director-General 23 may, by a notice in writing served personally or by post on the person 24 by whom the money is held, require that person: 25 (a) to pay to the Director-General any moneys referred to in the 26 Gazette notification that have not been previously paid by that 27 person out of the trust account in which they are held, and 28 (b) to furnish to the Director-General, within such period as may be 29 specified in the notice to the person, a statement showing 30 particulars of any payments made out of the money referred to 31 in the Gazette notification since the unclaimed money 32 statement was made. 33 (4) The Director-General must pay any money received by the 34 Director-General under this section into the Compensation Fund. 35 Page 67

Clause 95 Property, Stock and Business Agents Bill 2001 Part 7 Trust accounts Division 4 Unclaimed trust money (5) Within 2 months after 31 December in each year, the Director-General 1 must pay into the Consolidated Fund all money received by the 2 Director-General and paid into the Compensation Fund under this 3 section during the period of 12 months ending on that 31 December. 4 (6) When the Director-General makes a payment into the Consolidated 5 Fund, the Director-General is to give the Treasurer a statement 6 containing the following particulars: 7 (a) the name and last known address of each person for whom or 8 on whose behalf the money received by the Director-General 9 was held, 10 (b) the amount held in respect of each of those persons, 11 (c) the date of gazettal of the Gazette notification in respect of that 12 money, 13 (d) the name and address of each licensee who furnished an 14 unclaimed money statement to the Director-General in respect 15 of that money. 16 (7) A person who fails to comply with the requirements of any notice 17 served on the person under this section is guilty of an offence. 18 Maximum penalty: 50 penalty units. 19 96 Repayment of unclaimed trust money 20 (1) The Treasurer must, on application made to the Treasurer by a person 21 entitled to money paid into the Consolidated Fund under this Division, 22 pay the money to the person. 23 (2) If an application for the payment of money to which a person is 24 entitled is made while the money is held in the Compensation Fund, 25 the Director-General must pay the money to the person from the 26 Compensation Fund. 27 Page 68

Property, Stock and Business Agents Bill 2001 Clause 97 Trust accounts Part 7 Information about trust accounts or transactions Division 5 Division 5 Information about trust accounts or transactions 1 97 Director-General may require information 2 (1) The Director-General may by notice in writing served on a licensee 3 require the licensee to furnish to the Director-General in the manner 4 required by the notice a statement in writing setting out full particulars 5 as to any of the following: 6 (a) the name of the trust account on which the licensee operates in 7 accordance with this Act, the name of the authorised deposit- 8 taking institution at which the account is current, the balance of 9 the money standing to the credit of the account as at a date 10 specified in the requisition, and particulars of all cheques drawn 11 on the account as at such date and not presented and duly paid, 12 or 13 (b) any money paid by any person to the licensee or received by the 14 licensee for or on behalf of any person in connection with the 15 licensee's business as a licensee, and if not still held by the 16 licensee the manner and time of its disbursement, or 17 (c) any transaction by or with the licensee as a licensee. 18 (2) The licensee must comply with a notice under this section within 7 19 days after it is served on the licensee. 20 (3) A notice under this section cannot relate to any transaction by or with 21 the licensee more than 3 years before the notice is served on the 22 licensee. 23 98 Person concerned in transaction may request itemised account 24 (1) A person directly concerned in any transaction by or with a licensee in 25 connection with the licensee's business as a licensee may request the 26 licensee in writing to render to the person in the manner prescribed by 27 the regulations an itemised account of the transaction. 28 (2) The licensee must comply with the request within 14 days after the 29 request is served on the licensee. 30 (3) A person may not request an itemised account of a transaction that 31 took place more than 6 months before the making of the request. 32 Page 69

Clause 99 Property, Stock and Business Agents Bill 2001 Part 7 Trust accounts Division 5 Information about trust accounts or transactions 99 Offence 1 (1) A licensee must not fail without reasonable excuse (proof which lies 2 on the licensee) to comply with a requirement under this Division. 3 (2) A licensee must not, in purported compliance with a requirement 4 under this Division, furnish information that the licensee knows is 5 false or misleading in a material particular. 6 Maximum penalty: 100 penalty units. 7 Page 70

Property, Stock and Business Agents Bill 2001 Clause 100 Records Part 8 Keeping and inspection of records Division 1 Part 8 Records 1 Division 1 Keeping and inspection of records 2 100 Licensee's records 3 (1) In this Act: 4 licensee's records means: 5 (a) records required to be kept by a licensee by or under this Act 6 that are in the possession, custody or control of the licensee, 7 and 8 (b) records and documents in the possession, custody or control of 9 a licensee that relate to any account (whether or not a trust 10 account) kept by the licensee in connection with his or her 11 business as a licensee or to any transaction by or with the 12 licensee in connection with his or her business as a licensee. 13 (2) If records or documents that were licensee's records are in the 14 possession, custody or control of a person as a former licensee, as the 15 personal representative of a deceased licensee, or as a result of the 16 transfer of the business of the licensee or otherwise, those records or 17 documents are still licensee's records for the purposes of this 18 Division. 19 (3) An account on which a strata managing agent operates for or on behalf 20 of an owners corporation, or on which a community managing agent 21 operates on behalf of an association constituted under the Community 22 Land Development Act 1989 is taken to be an account kept by the 23 agent in connection with his or her business as a licensee. 24 (4) This Part extends to records in the possession, custody or control of a 25 person even when the records are located outside the State. 26 101 Licensee to make and keep certain records 27 (1) A licensee must make the following records: 28 (a) a record containing full particulars of all transactions by or with 29 the licensee in connection with his or her business as a licensee, 30 (b) such other records relating to the licensee's business as a 31 licensee as may be required by the regulations. 32 Page 71

Clause 101 Property, Stock and Business Agents Bill 2001 Part 8 Records Division 1 Keeping and inspection of records (2) A record required by this section must be kept for at least 3 years after 1 it is made. 2 (3) The record must be kept: 3 (a) by the licensee at the licensee's registered office (while the 4 licensee remains a licensee), or 5 (b) if the licensee ceases to be a licensee, by the former licensee in 6 his or her possession, custody or control unless the former 7 licensee authorises some other person to have possession, 8 custody or control of the record, or 9 (c) by any other person who obtains possession, custody or control 10 of the record whether as a result of being the personal 11 representative of a deceased licensee or by transfer of the 12 business of the licensee or otherwise. 13 (4) The regulations may make provision for the manner and form in which 14 a record required by this section is to be kept. 15 (5) An entry in a record made under this section and kept at the registered 16 office of a licensee is presumed, unless the contrary is proved, to have 17 been made by or with the authority of the licensee. 18 (6) A person who contravenes a provision of this section is guilty of an 19 offence. 20 Maximum penalty: 50 penalty units. 21 102 Inspection of licensee's records 22 (1) A licensee's records are at all reasonable times open to inspection by 23 an authorised officer. 24 (2) An authorised officer may require a person who has possession, 25 custody or control of a licensee's records: 26 (a) to produce the licensee's records for inspection, 27 (b) to furnish all authorities and orders to financial institutions as 28 may be reasonably required of the person. 29 (3) If a licensee is absent from an office or place of business of the 30 licensee, any employee or agent of the licensee for the time being 31 having the apparent control or charge of the office or place of business 32 is taken to have possession, custody or control of the licensee's records 33 at that office or place of business. 34 Page 72

Property, Stock and Business Agents Bill 2001 Clause 102 Records Part 8 Keeping and inspection of records Division 1 (4) An authorised officer may take copies of or extracts from, or make 1 notes from, any licensee's records produced to the authorised officer 2 under this section and for that purpose may take temporary possession 3 of those records. 4 103 Inspection of records of financial institutions 5 (1) An authorised officer may serve on an authorised deposit-taking 6 institution with which a licensee has deposited any money in any 7 account (whether the licensee's own account or a general or separate 8 trust account) a notice, in a form approved by the Director-General and 9 signed by the Director-General or a member of the police force: 10 (a) certifying as to the reason for serving the notice, as provided by 11 this section, and 12 (b) requiring the authorised deposit-taking institution to produce to 13 the authorised officer for inspection the records of the 14 institution relating to the account. 15 (2) Each of the following is a reason for serving a notice under this 16 section: 17 (a) the licensee cannot be located, 18 (b) the licensee has left the State, 19 (c) the licensee or any other person required to do so has failed to 20 furnish any authority or order on the institution in accordance 21 with a requirement under this Division, 22 (d) the licensee has ceased to be a licensee. 23 (3) An authorised officer may take copies of or extracts from, or make 24 notes from, any licensee's records produced to the authorised officer 25 under this section and for that purpose may take temporary possession 26 of those records. 27 104 Power to require production of licensee's records 28 (1) An authorised officer may give a written notice to a licensee or to 29 another person that the officer reasonably believes has possession, 30 custody or control of the licensee's records requiring the licensee or 31 person to produce the licensee's records specified in the notice at the 32 time and place specified in the notice. 33 Page 73

Clause 104 Property, Stock and Business Agents Bill 2001 Part 8 Records Division 1 Keeping and inspection of records (2) An authorised officer may inspect any record produced in response to 1 a notice under this section and may take copies of or extracts from, or 2 make notes from, any such record. 3 (3) A licensee does not contravene a provision of this Act if the licensee 4 was unable to comply with the provision because an authorised officer 5 retained possession of a record or document under this section. 6 105 Power to take possession of records to be used as evidence 7 (1) An authorised officer to whom any record is produced under this Part 8 may take possession of the record if the authorised officer considers it 9 necessary to do so for the purpose of obtaining evidence or protecting 10 evidence from destruction. 11 (2) If an authorised officer takes possession of any record under this 12 section, the record may be retained by the officer until the completion 13 of any proceedings (including proceedings on appeal) in which the 14 record may be evidence. 15 (3) The person from whom the record was taken must be provided, within 16 a reasonable time after the record is taken, with a copy of the record 17 certified by an authorised officer as a true copy. 18 (4) A copy of a record provided under this section is, as evidence, of equal 19 validity to the record of which it is certified to be a copy. 20 106 Additional requirements for managing agents 21 (1) A strata managing agent or community managing agent must keep a 22 copy of the following instruments: 23 (a) an instrument of appointment appointing the agent as strata 24 managing agent or community managing agent, and 25 (b) an instrument delegating to the agent any powers, authorities, 26 duties or functions of an owners corporation or an association. 27 (2) A copy of an instrument of appointment kept under this section is a 28 licensee's record for the purposes of this Part. 29 (3) In this section: 30 association means a community association, precinct association or 31 neighbourhood association constituted under section 25 of the 32 Community Land Development Act 1989. 33 owners corporation means an owners corporation constituted under 34 the Strata Schemes Management Act 1996. 35 Page 74

Property, Stock and Business Agents Bill 2001 Clause 107 Records Part 8 Keeping and inspection of records Division 1 107 Offence 1 (1) A person must not: 2 (a) wilfully delay or obstruct an authorised officer in the exercise 3 of the authorised officer's functions under this Division, or 4 (b) fail to comply with a requirement under this Division to 5 produce a record or document in the person's possession, 6 custody, or control, or 7 (c) fail to comply with a requirement under this Division to furnish 8 any authority or order reasonably required of the person under 9 this Division or 10 (d) in purported compliance with a requirement under this 11 Division produce a document or record knowing it to be false 12 or misleading in a material particular. 13 Maximum penalty: 100 penalty units. 14 (2) A court that convicts a person of an offence under this section may, in 15 addition to any penalty imposed, order the person to produce the 16 records in respect of which the offence occurred to the 17 Director-General or an authorised officer within such time as the court 18 specifies in the order. 19 (3) A person who fails to produce a record in accordance with an order of 20 a court made under this section is guilty of an offence punishable by 21 a penalty not exceeding 10 penalty units in respect of each day that the 22 failure continues. 23 Division 2 Audit of licensee's records 24 108 Requirement for audit 25 (1) A person who is a licensee, a former licensee or the personal 26 representative of a licensee must, within 3 months after the end of the 27 audit period applicable to the person: 28 (a) cause the records and documents relating to any money held 29 during that period in a trust account kept by the person in 30 accordance with this Act to be audited by a person qualified to 31 act as an auditor for the purposes of this Division, and 32 (b) lodge the auditor's report on the audit with the 33 Director-General. 34 Page 75

Clause 108 Property, Stock and Business Agents Bill 2001 Part 8 Records Division 2 Audit of licensee's records (2) The Director-General may in a particular case or class of cases by 1 order in writing extend the period of 3 months under subsection (1). 2 (3) The person must retain a copy of the auditor's report on the audit for 3 a period of three years after the date on which the report was made. 4 (4) The auditor's report is to be in a form approved by the Director- 5 General and is to be signed by the auditor. 6 Maximum penalty: 7 (a) 100 penalty units in the case of a corporation, or 8 (b) 50 penalty units in any other case. 9 109 Audit period 10 (1) The audit period applicable to a person is the year ending on 30 June 11 or such other period as the Director-General may fix in respect of the 12 person under this section. 13 (2) The Director-General may by order in writing served on a person fix 14 some other period as the audit period applicable to the person. 15 (3) Such an order may be made on the application of the person or on the 16 Director-General's own initiative. 17 (4) Such an order may be made with such limitations as to time or 18 circumstances, and subject to such conditions, as the Director-General 19 considers appropriate. 20 110 Statutory declaration required when no trust money held or received 21 A licensee who in the course of the audit period applicable to the 22 licensee neither received nor held any money for or on behalf of any 23 other person must, within the period of three months after that day, 24 make and lodge with the Director-General a statutory declaration to 25 that effect. 26 111 Audit obligations of partners 27 If the provisions of this Division are complied with by any one of the 28 licensees in a partnership of licensees in relation to the audit of the 29 records and documents of the partnership, each of those partners is 30 taken to have complied with those provisions. 31 Page 76

Property, Stock and Business Agents Bill 2001 Clause 112 Records Part 8 Audit of licensee's records Division 2 112 Qualifications of auditors 1 (1) A person is qualified to act as an auditor for the purposes of this 2 Division if the person: 3 (a) is a registered company auditor within the meaning of the 4 Corporations Act 2001, or 5 (b) is a person who has been nominated by the person whose 6 records and documents are to be audited and who has been 7 approved by the Director-General by order in writing. 8 (2) Such a person is not qualified to act as an auditor for the purposes of 9 this Division if the person: 10 (a) is or has at any time within 2 years before the last day of the 11 period in respect of which the audit is to be made, been an 12 employee or partner of the person whose records or documents 13 are to be audited, or 14 (b) is a licensee, or a shareholder in a corporation that is a licensee 15 and that has not more than twenty shareholders. 16 113 Duties of auditors 17 (1) If an auditor in the course of making an audit for the purposes of this 18 Division discovers that any breach of this Act or the regulations has 19 been committed, that there is any discrepancy relating to the trust 20 account to which the audit relates or that the records or documents 21 concerned are not kept in such a manner as to enable them to be 22 properly audited, the auditor must: 23 (a) fully set out the facts so discovered by the auditor in the report 24 made by the auditor for the purposes of the audit, and 25 (b) forward a copy of the report to the Director-General. 26 (2) An auditor, or an assistant of an auditor, appointed to make an audit 27 for the purposes of this Division must not communicate any matter 28 which may come to the auditor's knowledge in the course of the audit 29 to any person except: 30 (a) in the course of the auditor's duties as an auditor or assistant of 31 an auditor, or 32 (b) in accordance with this section, or 33 (c) in the like circumstances and to the like extent as an officer of 34 the Department is permitted under this Act to publish that 35 information. 36 Page 77

Clause 113 Property, Stock and Business Agents Bill 2001 Part 8 Records Division 2 Audit of licensee's records (3) An auditor's report under this Division (including under this section) 1 relating to documents or records of any person, and any statutory 2 declaration lodged with the Director-General under this Division, are 3 available in the hands of the Director-General for inspection by an 4 auditor appointed to carry out for the purposes of this Division any 5 subsequent audit of the records or documents of that person. 6 Division 3 Freezing of accounts 7 114 Definitions 8 In this Division: 9 account means: 10 (a) a trust account in a licensee's name with a financial institution, 11 or 12 (b) an account in a licensee's name or in which a licensee has an 13 interest with a financial institution, or 14 (c) another account to which trust money is deposited. 15 holder of an account means the licensee or other person authorised to 16 operate on the account. 17 licensee includes a former licensee and the personal representative of 18 a deceased licensee. 19 trust money means money received for or on behalf of any person by 20 a licensee (whether or not the money is deposited in a trust account 21 required to be kept by a licensee). 22 115 Director-General may freeze licensee's accounts in particular cases 23 (1) A direction under this Division may be given when it appears to the 24 Director-General that any of the following persons has, or may have, 25 stolen, misappropriated or misapplied trust money: 26 (a) a licensee, 27 (b) the person in charge of a licensee's business at a place, 28 (c) an employee of a licensee. 29 Page 78

Property, Stock and Business Agents Bill 2001 Clause 115 Records Part 8 Freezing of accounts Division 3 (2) The Director-General may by direction in writing direct that: 1 (a) if a claim has been made against the Fund concerning the trust 2 money, all or part of the amount to the credit of a specified 3 account be paid to the Director-General, or 4 (b) an amount must not be drawn from a specified account other 5 than with the Director-General's written approval, or 6 (c) a specified account may be operated only under specified 7 conditions. 8 (3) The direction must be given to each holder of the account and the 9 financial institution at which the account is kept, and must identify the 10 account to which it relates. 11 (4) Any amount paid to the Director-General pursuant to such a direction 12 must be paid into the Fund. 13 116 Financial institution must comply with direction 14 (1) A financial institution to which a direction under this Division is given 15 (whether or not the direction has been given to anyone else) must not, 16 while the direction is in force: 17 (a) pay a cheque or other instrument drawn on the account 18 concerned unless the cheque or instrument is also signed by the 19 Director-General or a person authorised by the Director-General 20 for the purposes of this section, or 21 (b) give effect to another transaction on the account that is not 22 authorised because of the direction. 23 Maximum penalty: 500 penalty units. 24 (2) The signature of the Director-General or authorised person on a cheque 25 or other instrument is sufficient evidence of the Director-General's 26 approval to draw an amount from the account to honour the cheque or 27 other instrument. 28 (3) A manager or principal officer in charge of an office or branch of the 29 financial institution where an account is kept, or another officer of the 30 financial institution, must not knowingly permit a contravention of this 31 section by the financial institution. 32 Maximum penalty: 100 penalty units or imprisonment for 12 months, 33 or both. 34 Page 79

Clause 116 Property, Stock and Business Agents Bill 2001 Part 8 Records Division 3 Freezing of accounts (4) A person to whom a direction is given does not incur a civil liability 1 to another person by reason only of complying with the direction. 2 117 Account not to be operated unless Director-General allows 3 After a direction under this Division has been given to the holder of an 4 account, the holder must not (while the direction remains in force) sign 5 a cheque or other instrument drawn on the account unless the cheque 6 or other instrument has first been signed by the Director-General or a 7 person authorised by the Director-General to sign the cheque or 8 instrument. 9 Maximum penalty: 100 penalty units or imprisonment for 12 months, 10 or both. 11 118 Director-General may operate account 12 (1) The Director-General or a person authorised in writing by the Director- 13 General (an authorised person) may operate on an account that is the 14 subject of a direction under this Division if the holder of the account 15 refuses to operate the account. 16 (2) A statutory declaration made by the Director-General or authorised 17 person to the effect that the account holder is refusing to operate on the 18 account is sufficient evidence to the licensee's financial institution of 19 that fact. 20 119 Withdrawal of direction 21 (1) A direction remains in force until it is withdrawn. 22 (2) The Director-General may withdraw a direction under this Division at 23 any time. 24 (3) When a direction is withdrawn, the Director-General is to give all 25 persons who were given the direction a notice that the direction has 26 been withdrawn. Failure to give notice does not affect the withdrawal 27 of the direction. 28 Page 80

Property, Stock and Business Agents Bill 2001 Clause 120 Complaints and disciplinary action Part 9 Part 9 Complaints and disciplinary action 1 120 Grounds for disciplinary action 2 Disciplinary action under this Part can be taken against a person who 3 is or was the holder of a licence or certificate of registration on any one 4 or more of the following grounds: 5 (a) the person has contravened a provision of this Act or any other 6 Act administered by the Minister, or the regulations under any 7 such Act, whether or not the person has been prosecuted or 8 convicted of an offence in respect of the contravention, or 9 (b) the person has contravened a condition of the licence or 10 certificate of registration, or 11 (c) the person has, in the course of carrying on business or 12 exercising functions under the licence or certificate of 13 registration, acted unlawfully, improperly, unfairly or 14 incompetently, or 15 (d) the person is not a fit and proper person to hold a licence or 16 certificate of registration, 17 (e) the person is not a fit and proper person to be involved in the 18 direction, management or conduct of the business of a licensee, 19 (f) the person is a disqualified person, 20 (g) the person has failed to pay any part of a contribution or levy 21 that is due and payable under Part 11 (Compensation Fund), 22 (h) in the case of a licensee, there is no approved policy of 23 professional indemnity insurance in force with respect to the 24 licensee (unless the licensee is exempt under the regulations 25 from the requirement for professional indemnity insurance), 26 (i) the person has breached an undertaking given by the person to 27 the Director-General under this Act or the Fair Trading 28 Act 1987, in respect of the person's conduct of business or 29 exercise of functions under the licence or certificate of 30 registration, 31 (j) the person has failed to comply with a direction given to the 32 person by the Director-General pursuant to the taking of 33 disciplinary action under this Part, 34 Page 81

Clause 120 Property, Stock and Business Agents Bill 2001 Part 9 Complaints and disciplinary action (k) the person has failed to pay a monetary penalty imposed on the 1 person by the Director-General pursuant to the taking of 2 disciplinary action under this Part, 3 (l) the issue of the person's licence or certificate of registration 4 was obtained by fraud or mistake. 5 121 Disciplinary action 6 (1) Each of the following actions is disciplinary action that the Director- 7 General can take against a person under this Act: 8 (a) caution or reprimand the person, 9 (b) give a direction to the person requiring the person to give a 10 specified undertaking to the Director-General as to the manner 11 in which the person will conduct business or exercise functions 12 under a licence or certificate of registration held by the person, 13 (c) give a direction to the person requiring the person to take 14 specified action within a specified time in connection with the 15 conduct of business or the exercise of functions under a licence 16 or certificate of registration, 17 (d) impose a monetary penalty on the person of an amount not 18 exceeding 100 penalty units in the case of an individual or 200 19 penalty units in the case of a corporation, 20 (e) impose a condition on the person's licence or certificate of 21 registration, 22 (f) suspend the person's licence or certificate of registration for a 23 period that does not exceed the unexpired term of the licence 24 or certificate of registration, 25 (g) cancel the person's licence or certificate of registration, 26 (h) declare the person to be a disqualified person for the purposes 27 of this Act, either permanently or for a specified period, 28 (i) disqualify the person from being involved in the direction, 29 management or conduct of the business of a licensee. 30 (2) A power conferred by this Act to take disciplinary action against a 31 person is a power to take any one or more of the actions that constitute 32 disciplinary action. 33 Page 82

Property, Stock and Business Agents Bill 2001 Clause 121 Complaints and disciplinary action Part 9 (3) When a licence or certificate of registration is suspended, it is taken not 1 to be in force except for such provisions of this Act or the regulations 2 as the regulations may prescribe as provisions that remain applicable 3 to a suspended licence. 4 122 Decision to take no further action 5 The Director-General may at any stage of a matter that is the subject 6 of consideration by the Director-General under this Part determine to 7 take no further action in respect of the matter, whether or not the 8 matter is the subject of a complaint or a show cause notice and 9 whether or not the Director-General determines that there are grounds 10 for taking disciplinary action in connection with the matter. 11 123 Complaints 12 (1) Any person may make a complaint to the Director-General setting out 13 matters that are alleged to constitute grounds for taking disciplinary 14 action against a person under this Act. 15 (2) Action can be taken under this Part whether or not a complaint has 16 been made. 17 124 Show cause notice 18 (1) The Director-General may serve a show cause notice on a person if the 19 Director-General is of the opinion that there is reasonable cause to 20 believe that there are grounds for taking disciplinary action against the 21 person. 22 (2) A show cause notice is a notice requiring a person to show cause why 23 disciplinary action should not be taken against the person under this 24 Act on the grounds specified in the notice. 25 (3) A show cause notice is to be in writing and is to specify a period of 26 not less than 14 days after service of the notice as the period that the 27 person to whom the notice is directed has to show cause as required by 28 the notice. 29 (4) The person on whom a show cause notice is served may within the 30 period allowed by the notice make oral or written submissions to the 31 Director-General in respect of the matters to which the notice relates. 32 In the case of a corporation, submissions may be made by a director or 33 officer of the corporation. 34 Page 83

Clause 125 Property, Stock and Business Agents Bill 2001 Part 9 Complaints and disciplinary action 125 Power to suspend licence or certificate of registration when show 1 cause notice served 2 (1) When a show cause notice is served on a person, the Director-General 3 may by notice in writing to the person suspend the person's licence or 4 certificate of registration pending a determination by the Director- 5 General of whether to take disciplinary action under this Act against 6 the person. 7 (2) The Director-General may only suspend a licence or certificate of 8 registration under this section if satisfied that the grounds for 9 disciplinary action specified in the show cause notice would, if 10 established, justify the suspension or cancellation of the licence or 11 certificate of registration. 12 (3) Such a suspension may not be imposed for a period of more than 60 13 days after the show cause notice is served. 14 (4) The Director-General is not required to afford a person an opportunity 15 to be heard before taking action against the person under this section. 16 (5) The Director-General can revoke a suspension under this section at any 17 time by notice in writing to the suspended person. 18 (6) This section does not limit or otherwise affect any power to suspend 19 a licence or certificate of registration under section 64A of the Fair 20 Trading Act 1987. 21 126 Inquiries and investigation 22 The Director-General may conduct inquiries and make investigations 23 in relation to the matters to which a show cause notice relates and the 24 submissions, if any, made by or on behalf of the person to whom the 25 show cause notice relates in relation to those matters, as the Director- 26 General thinks fit. 27 127 Taking of disciplinary action 28 (1) If the Director-General is satisfied that there are grounds for taking 29 disciplinary action under this Act against a person on whom a show 30 cause notice has been served, the Director-General may by order in 31 writing served on the person take such disciplinary action against the 32 person as the Director-General thinks is warranted. 33 (2) The order must include a statement of the reasons for the Director- 34 General's decision on the matter. 35 Page 84

Property, Stock and Business Agents Bill 2001 Clause 128 Complaints and disciplinary action Part 9 128 Recovery of monetary penalty 1 A monetary penalty imposed on a person by disciplinary action under 2 this Part may be recovered by the Director-General in a court of 3 competent jurisdiction as a debt due to the Crown. 4 129 Review of disciplinary action by ADT 5 A person against whom disciplinary action is taken by the Director- 6 General may apply to the Administrative Decisions Tribunal under the 7 Administrative Decisions Tribunal Act 1997 for a review of the 8 Director-General's decision on the disciplinary action or on a review 9 of the disciplinary action. 10 130 Warning notices 11 (1) The Director-General may authorise publication of a notice warning 12 persons of particular risks involved in dealing with a specified holder 13 of a licence, or a person who does not hold a licence, in connection 14 with the activities of licensees. 15 (2) For example, a warning may relate to the risks involved in dealing 16 with a person who has a recent history of unconscionable conduct in 17 the person's dealings with consumers. 18 (3) The Director-General may authorise publication of such a notice in any 19 one or more of the following ways: 20 (a) to any person making inquiries to the Director-General about 21 the licensee concerned, 22 (b) by advertisement by the use of any medium, 23 (c) to any media representatives. 24 (4) Publication of such a notice may not be authorised unless an 25 investigation has been conducted by the Director-General, whether or 26 not a complaint has been made. 27 (5) Before authorising publication of such a notice, the Director-General 28 must give the person concerned an opportunity for a period of not less 29 than 48 hours to make representations to the Director-General about 30 publication of such a notice, unless: 31 (a) the Director-General is not able, after making reasonable efforts 32 to do so, to contact the person promptly and advise the person 33 of that opportunity, or 34 (b) the person refuses to make any representations. 35 Page 85

Clause 130 Property, Stock and Business Agents Bill 2001 Part 9 Complaints and disciplinary action (6) No opportunity to make representations is required to be given if, in 1 the opinion of the Director-General, there is an immediate risk to the 2 public. 3 (7) No liability is incurred by a person for publishing in good faith: 4 (a) a notice under this section, or 5 (b) a fair report or summary of such a notice. 6 131 Failure to comply with disqualification from involvement in business 7 A person who is disqualified under this Part from being involved in 8 the direction, management or conduct of the business of a licensee 9 must not act contrary to the disqualification. 10 Maximum penalty: 11 (a) 200 penalty units in the case of a corporation, or 12 (b) 100 penalty units in any other case. 13 132 Return of suspended or cancelled licence 14 A person who has possession of a licence or certificate of registration 15 that has been suspended or cancelled under this Part must give the 16 licence or certificate of registration to an officer of the Department at 17 any office of the Department within 7 days after the suspension or 18 cancellation takes effect. 19 Maximum penalty: 20 (a) 40 penalty units in the case of a corporation, or 21 (b) 20 penalty units in any other case. 22 Page 86

Property, Stock and Business Agents Bill 2001 Clause 133 Management and receivership Part 10 Preliminary Division 1 Part 10 Management and receivership 1 Division 1 Preliminary 2 133 Definitions 3 In this Part: 4 associate, in relation to a licensee, has the meaning given to it by 5 section 134. 6 expenses, in relation to management, means: 7 (a) the remuneration payable to the manager, or 8 (b) the expenses incurred in the course of the management or 9 receivership, or 10 (c) the costs of legal proceedings involved in the management or 11 receivership, or 12 (d) any reimbursement of the manager or receiver under this Part. 13 failure to account has the meaning given to it by section 135. 14 licensee includes: 15 (a) a firm of licensees, and 16 (b) a former licensee, and 17 (c) in relation to anything done or omitted by a licensee--a 18 deceased licensee and a deceased former licensee, and 19 (d) except in relation to anything done or omitted by a 20 licensee--the personal representative of a deceased licensee or 21 a deceased former licensee. 22 Operating Account means the Department of Fair Trading Operating 23 Account or a departmental account prescribed by the regulations for 24 the purposes of this definition. 25 property, in relation to a licensee, means: 26 (a) money or other property received by the licensee on behalf of 27 another person in the conduct of the licensee's business, or 28 (b) interest, dividends, income, profits or other property derived 29 from or acquired with money or other property referred to in 30 paragraph (a), or 31 Page 87

Clause 133 Property, Stock and Business Agents Bill 2001 Part 10 Management and receivership Division 1 Preliminary (c) documents and records of any description relating to anything 1 referred to in paragraph (a) or (b) or to the licensee's business, 2 or 3 (d) any means by which any records referred to in paragraph (c) 4 that are not written may be reproduced in writing, 5 and, in relation to a licensee whose business is under management, 6 includes any property of the business. 7 receivable property means property of a licensee or an associate of a 8 licensee that is the subject of an order appointing a receiver, and 9 includes property that, but for its having being taken, paid or 10 transferred unlawfully or in breach of trust, would be receivable 11 property. 12 receiver means a receiver appointed by the Supreme Court under this 13 Part. 14 relevant associate means a licensee's associate of whose property a 15 receiver has been appointed under this Part. 16 relevant licensee means a licensee of whose property a receiver has 17 been appointed. 18 134 Associates of a licensee 19 (1) In this Part, a reference to a licensee's associate is a reference to: 20 (a) a partner of the licensee, or 21 (b) an employee or agent of the licensee, or 22 (c) a corporation, or a member of a corporation, partnership, 23 syndicate or joint venture, in which the licensee or a person 24 referred to in paragraph (a), (b) or (d) has a beneficial interest, 25 or 26 (d) a person who bears a prescribed relationship to the licensee or 27 to a person referred to in paragraphs (a)�(c), or 28 (e) a corporation that (if a person referred to in paragraphs (b)�(d) 29 is a corporation) is a subsidiary of the person within the 30 meaning of the Corporations Act, or 31 (f) a person declared by the regulations to be an associate of the 32 licensee or belonging to a class of persons so declared. 33 Page 88

Property, Stock and Business Agents Bill 2001 Clause 134 Management and receivership Part 10 Preliminary Division 1 (2) For the purposes of subsection (1) (d), a person bears a prescribed 1 relationship to a licensee or other person if the relationship is that of: 2 (a) a spouse, or 3 (b) a de facto partner who is living or has lived with him or her as 4 his or her wife or husband on a bona fide domestic basis 5 although not married to him or her, or 6 (c) a child, grandchild, sibling, parent or grandparent, whether 7 derived through paragraph (a) or (b) or otherwise, or 8 (d) a kind prescribed by the regulations for the purposes of this 9 section. 10 135 Failure to account 11 (1) In this Part, failure to account means a failure by a licensee to account 12 for, pay or deliver money or other valuable property: 13 (a) that has been received by or entrusted to the licensee, or an 14 associate of the licensee, in the course of the licensee's 15 business, and 16 (b) that is, in the case of money or other valuable property received 17 by or entrusted to an associate of the licensee, under the direct 18 or indirect control of the licensee, 19 being a failure that arises from an act or omission of the licensee or 20 associate. 21 (2) The reference in the definition of failure to account in subsection (1) 22 to money or other valuable property received by or entrusted to a 23 licensee includes a reference to money or other valuable property that 24 is received by or entrusted to the licensee as trustee, agent, bailee or 25 stakeholder, or in any other capacity. 26 Division 2 Management 27 136 Appointment of manager 28 (1) The Director-General may appoint a manager for a licensee's business 29 in any of the following cases if the Director-General is of the opinion 30 that it is necessary to make the appointment in order to protect the 31 interests of other persons: 32 Page 89

Clause 136 Property, Stock and Business Agents Bill 2001 Part 10 Management and receivership Division 2 Management (a) the licensee has made a request to the Director-General for the 1 appointment of a manager, or 2 (b) the licensee's licence has been cancelled or is under suspension, 3 or 4 (c) the Director-General is of the opinion that there has been, or 5 that there may have been, a failure to account by the licensee, 6 or 7 (d) the Director-General is of the opinion that a person is unable to 8 obtain payment or delivery of property held by the licensee 9 because the licensee: 10 (i) is mentally or physically infirm, or 11 (ii) is bankrupt, has applied to take the benefit of any law 12 for the relief of bankrupt or insolvent debtors, has 13 compounded with his or her creditors or has made an 14 assignment of his or her remuneration for their benefit, 15 or 16 (iii) is an inmate within the meaning of the Crimes 17 (Administration of Sentences) Act 1999, or 18 (iv) has died, or 19 (v) has abandoned his or her business. 20 (2) In the case of a business that is conducted by 2 or more licensees in 21 partnership, a reference in subsection (1) to a licensee is to be read as 22 a reference to all of the licensees in the partnership. 23 (3) The terms of appointment of a manager must specify the remuneration 24 to which the manager is to be entitled in connection with the 25 management of the business for which the manager is appointed. 26 137 Qualifications for appointment as manager 27 A person is not eligible to be appointed as the manager of a licensee's 28 business unless the person is a licensee or has such other 29 qualifications or experience as the Director-General considers 30 appropriate in a particular case. 31 138 Powers of manager 32 (1) The manager of a licensee's business may, subject to the terms of his 33 or her appointment: 34 (a) carry out work on behalf of the existing clients of the business, 35 and 36 Page 90

Property, Stock and Business Agents Bill 2001 Clause 138 Management and receivership Part 10 Management Division 2 (b) accept instructions from, and carry out work on behalf of, new 1 clients, and 2 (c) dispose of, and otherwise deal with, any property in relation to 3 the business, and 4 (d) exercise any right in the nature of a lien over property held by 5 the manager on behalf of the clients of the business, and 6 (e) incur such expenses as are reasonably related to the conduct of 7 the business, and 8 (f) do all such things as are ancillary to the exercise of the powers 9 referred to in paragraphs (a)�(e), 10 as if he or she were the licensee to whom the business belongs. 11 (2) The manager of a licensee's business may not exercise any of the 12 functions conferred by this section in relation to the affairs of a client 13 of the business unless the client's consent has been obtained to the 14 manager's exercise of those functions. 15 139 Management continues under receivership 16 (1) The manager of a licensee's business may continue to exercise his or 17 her functions under this Division even if a receiver is appointed under 18 Division 3 in respect of the licensee's property. 19 (2) The manager of a licensee's business for which a receiver is appointed 20 must comply with any lawful direction given by the receiver in 21 connection with the conduct of the business. 22 140 Acts of manager taken to be acts of licensee 23 (1) An act done by the manager of a licensee's business is, for the 24 purposes of any proceedings or transaction that relies on that act, taken 25 to have been done by the licensee. 26 (2) Nothing in this section subjects a licensee to any personal liability in 27 relation to any act done by the manager of the licensee's business. 28 141 Manager may be reimbursed for damages 29 (1) The Director-General may reimburse a manager for any damages and 30 costs recovered against the manager, or an employee or agent of the 31 manager, for anything done or omitted to be done in good faith in the 32 purported exercise of a function under this Act. 33 Page 91

Clause 141 Property, Stock and Business Agents Bill 2001 Part 10 Management and receivership Division 2 Management (2) Reimbursement under this section is to be by way of payment from the 1 Operating Account. 2 (3) Neither the manager of a licensee's business nor the Director-General 3 is liable for any loss incurred by the licensee as a consequence of any 4 act or omission of the manager or the Director-General in the conduct 5 of the business if the act or omission was done or omitted in good faith 6 and in the purported exercise of a function under this Act. 7 142 Payment of expenses of management 8 (1) So much of the expenses of the management of a licensee's business 9 as have not otherwise been paid to the manager out of the receipts of 10 the business are to be paid to the manager by the Director-General 11 from the Operating Account. 12 (2) An amount paid under this section is recoverable by the 13 Director-General as a debt owed by the relevant licensee. 14 143 Manager to report to Director-General 15 (1) The manager of a licensee's business must report to the 16 Director-General on the management of the business. A report must be 17 made at such times as the Director-General directs and be in 18 accordance with any directions given by the Director-General. 19 (2) A report is to include such information as the Director-General directs. 20 (3) On the conclusion of the management of a licensee's business, the 21 manager must, when giving the Director-General his or her final 22 report, lodge with the Director-General all the manager's records that 23 relate to the management. 24 144 Trust money 25 (1) Part 8 (Records) applies to the accounts kept by a manager in the same 26 way as it applies to the accounts kept by a licensee. 27 (2) The trust accounts and controlled money accounts of a business under 28 management are to be maintained separately from the trust accounts 29 and controlled money accounts of any other business under 30 management. 31 Page 92

Property, Stock and Business Agents Bill 2001 Clause 145 Management and receivership Part 10 Management Division 2 145 Office accounts 1 The regulations may make provision with respect to: 2 (a) the accounts that are to be kept in relation to the income 3 accrued, and the expenses incurred, by the manager of a 4 licensee's business in connection with the conduct of the 5 business, and 6 (b) the purposes for which money in any such account may be 7 expended. 8 146 Termination of management 9 When a licensee's business ceases to be under management, any 10 money held by the manager in connection with the business (after 11 reimbursement of any money paid out of the Operating Account in 12 connection with the management of the business and after payment of 13 the expenses of the management of the business) becomes the property 14 of the licensee. 15 147 Obstruction of managers 16 A person must not hinder, obstruct or delay a manager in the exercise 17 of his or her functions under this Division. 18 Maximum penalty: 50 penalty units. 19 Division 3 Receivership 20 148 Supreme Court may appoint receiver 21 (1) The Supreme Court may, on the application of the Director-General, 22 appoint a receiver of all or any of the property of a licensee and may 23 make the appointment whether or not the licensee has been notified of 24 the application or is a party to the proceedings. 25 (2) Such an application may be made by the Director-General only if: 26 (a) the licensee has made a request to the Director-General for the 27 appointment of a receiver, or 28 (b) the licensee's licence has been suspended or cancelled, or 29 (c) the Director-General is of the opinion that there has been, or 30 that there may have been, a failure to account by the licensee, 31 or 32 Page 93

Clause 148 Property, Stock and Business Agents Bill 2001 Part 10 Management and receivership Division 3 Receivership (d) the Director-General is of the opinion that a person is unable to 1 obtain payment or delivery of property held by the licensee 2 because the licensee: 3 (i) is mentally or physically infirm, or 4 (ii) is bankrupt, has applied to take the benefit of any law 5 for the relief of bankrupt or insolvent debtors, has 6 compounded with his or her creditors or has made an 7 assignment of his or her remuneration for their benefit, 8 or 9 (iii) is an inmate within the meaning of the Crimes 10 (Administration of Sentences) Act 1999, or 11 (iv) has died, or 12 (v) has abandoned his or her business, 13 and the Director-General is of the opinion that it is necessary for the 14 application to be made in order to protect the interests of other persons. 15 (3) Nothing in this Division prevents a manager of a licensee's business 16 from being appointed as a receiver of the licensee's property. 17 (4) The Director-General may publicly notify the appointment of a 18 receiver of all or any property of a licensee. 19 (5) The Supreme Court is not to require the Director-General or any other 20 person, as a condition of granting an application under this section, to 21 give any undertaking as to damages or costs. 22 149 Receivership may extend to property of licensee's associate 23 If, on the application of a receiver, the Supreme Court is satisfied that 24 all or any of the property of a licensee's associate should be declared 25 to be receivable property, the Court may appoint the receiver to be the 26 receiver of all or any of that property. 27 150 Court to be closed 28 (1) Before commencing to hear an application for the appointment of a 29 receiver, the Supreme Court may order from the precincts of the Court 30 any person who is not: 31 (a) an officer of the Court, or 32 (b) a party, a legal representative of a party or a clerk of such a 33 legal representative, or 34 (c) a member of the same firm of licensees as the respondent, or 35 (d) a person who is in the course of giving evidence, or 36 Page 94

Property, Stock and Business Agents Bill 2001 Clause 150 Management and receivership Part 10 Receivership Division 3 (e) an authorised officer, or 1 (f) a person permitted by the Court to be present in the interests of 2 justice. 3 (2) The Supreme Court may, whether or not at the instance of a party, 4 prohibit the publication of any report relating to the evidence or other 5 proceedings or of any order made on the hearing of an application for 6 the appointment of a receiver. 7 151 Order to be served 8 (1) On the appointment of a receiver, the Director-General is to cause a 9 copy of the order of appointment to be served on: 10 (a) the relevant licensee or relevant associate, and 11 (b) any other person on whom the Supreme Court directs a copy of 12 the order to be served. 13 (2) The Supreme Court may give directions as to the manner of service 14 and may dispense with service if it thinks fit. 15 152 Receiver may take possession of property 16 (1) A receiver may take possession of receivable property of the relevant 17 licensee or relevant associate. 18 (2) A person in possession, or having control, of receivable property must 19 permit the receiver to take possession of the property if required by the 20 receiver to do so. 21 (3) If a person fails to comply with such a requirement, the Supreme 22 Court may, on the application of the receiver, order the person to 23 deliver the property to the receiver. 24 (4) If, on the application of a receiver, the Supreme Court is satisfied that 25 such an order has not been complied with, the Court: 26 (a) may order the seizure of any receivable property located on 27 premises specified in the order, and 28 (b) may make such further order in the matter as it thinks fit. 29 (5) An order under subsection (4) (a) authorises: 30 (a) any police officer, or 31 Page 95

Clause 152 Property, Stock and Business Agents Bill 2001 Part 10 Management and receivership Division 3 Receivership (b) the receiver, or a person authorised by the receiver, together 1 with any police officer, to enter the premises specified in the 2 order and to search for, seize and remove any property that 3 appears to be receivable property. 4 (6) An application by a receiver under subsection (3) may be made: 5 (a) in the case of property in the possession, or under the control, 6 of the relevant licensee or relevant associate--in the name of 7 the receiver, or 8 (b) in any other case--in the name of the relevant licensee or 9 relevant associate. 10 (7) A receiver must, as soon as possible, return property seized under this 11 section if it transpires that it is not receivable property. 12 153 Information about receivable property 13 (1) A person who has information relating to receivable property, or 14 property that a receiver believes on reasonable grounds to be 15 receivable property, must give the information to the receiver if 16 required by the receiver to do so. 17 Maximum penalty: 100 penalty units. 18 (2) A licensee who has any such information may not refuse to comply 19 with such a requirement merely because the information was obtained 20 in confidence from a client or former client of the licensee. 21 (3) A person who complies with a requirement under this section is not, 22 merely because of that compliance, subject to any liability, claim or 23 demand. 24 (4) Information given to a receiver under this section is not admissible as 25 evidence in any legal proceedings, other than: 26 (a) proceedings taken by a receiver for the recovery of receivable 27 property, or 28 (b) proceedings taken under this Part, or 29 (c) proceedings taken under Part 6 against a licensee: 30 (i) if the information was given to the receiver otherwise 31 than by the licensee, or 32 (ii) if the information was given to the receiver by the 33 licensee and is given in evidence in those proceedings 34 with the licensee's consent. 35 Page 96

Property, Stock and Business Agents Bill 2001 Clause 154 Management and receivership Part 10 Receivership Division 3 154 Stop order on account 1 (1) A receiver who believes on reasonable grounds that money held in an 2 account with an authorised deposit-taking institution is receivable 3 property may serve on the institution concerned an order (in this 4 section referred to as a stop order) prohibiting operations on the 5 account by any person other than the receiver or a person authorised 6 by the receiver. 7 (2) A stop order may be served by leaving it with the manager, accountant 8 or other person appearing to be in charge at the branch of the 9 authorised deposit-taking institution at which the account is kept, but 10 has no effect unless there is annexed to it a copy of the order 11 appointing the receiver. 12 (3) An authorised deposit-taking institution served with a stop order: 13 (a) must permit the receiver, or a person authorised by the 14 receiver, to operate on the account to which the order relates, 15 and 16 (b) must not permit any withdrawal from the account otherwise 17 than by, or by the authority of, the receiver. 18 (4) A receiver may transfer money from an account the subject of a stop 19 order to another account with the authorised deposit-taking institution 20 in the name of the receiver to be dealt with as receivable property. 21 (5) The authorised deposit-taking institution has the same obligations and 22 protections: 23 (a) in relation to an account the subject of a stop order, and 24 (b) in relation to an account to which money in such an account is 25 transferred, 26 as if the receiver were the relevant licensee or relevant associate. 27 155 Improper dealing with property 28 A person must not, with intent to defeat the purposes of this Division: 29 (a) operate on an account at an authorised deposit-taking 30 institution, or 31 (b) destroy or conceal receivable property or property that is likely 32 to become receivable property, or 33 Page 97

Clause 155 Property, Stock and Business Agents Bill 2001 Part 10 Management and receivership Division 3 Receivership (c) destroy or conceal any document that identifies or indicates the 1 location of receivable property or property that is likely to 2 become receivable property, or 3 (d) move receivable property, or property that is likely to become 4 receivable property, from one place to another, or 5 (e) deliver possession of receivable property, or property that is 6 likely to become receivable property, to another person, or 7 (f) deliver control of receivable property, or property that is likely 8 to become receivable property, to another person. 9 Maximum penalty: 100 penalty units. 10 156 Recovery of compensation for disposal of receivable property 11 (1) If receivable property has at any time been taken by, or paid or 12 transferred to, a person unlawfully or in breach of trust in 13 circumstances in which: 14 (a) the person knew or believed at the time that the taking, 15 payment or transfer was unlawful or in breach of trust, or 16 (b) there was no consideration for the taking, payment or transfer, 17 or 18 (c) there was inadequate consideration for the taking, payment or 19 transfer, or 20 (d) the person became indebted or otherwise liable to the relevant 21 licensee or relevant associate, or to a client of the licensee, as 22 a result of the taking, payment or transfer, 23 the receiver may recover from the person, as a debt, the amount taken, 24 paid or transferred, the amount of the inadequacy, the amount of the 25 debt or the value of the property taken or transferred, as appropriate. 26 (2) A person from whom an amount is recovered under subsection (1) is 27 not liable to any other person in respect of the amount. 28 (3) If receivable property has at any time been paid or transferred 29 unlawfully or in breach of trust to, or for the benefit of, a person in 30 respect of a cause of action the person claims to have against another 31 person, the receiver: 32 (a) may recover from the person as a debt the amount of the 33 payment or the value of the property, or 34 Page 98

Property, Stock and Business Agents Bill 2001 Clause 156 Management and receivership Part 10 Receivership Division 3 (b) to the extent to which the full amount or value is not recovered 1 from the person under paragraph (a)--may take such 2 proceedings in relation to the claimed cause of action as the 3 person could have taken. 4 (4) If a receiver takes proceedings under subsection (3) (b) in relation to 5 a cause of action claimed by a person, the receiver may not later take 6 proceedings under subsection (3) (a) to recover property paid or 7 transferred to the person in respect of the same cause of action. 8 (5) If receivable property is used unlawfully or in breach of trust to 9 discharge a debt or liability of a person, the receiver may recover from 10 the person as a debt the amount that was required for the discharge of 11 the debt or liability, reduced by the value of any consideration 12 provided by the person for the discharge. 13 (6) Recovery proceedings under this section may be taken in the name of 14 the receiver or in the name of any other person who, had the receiver 15 not been appointed, would have been entitled to take the proceedings. 16 157 Receiver may give certificate 17 (1) A receiver, or a person authorised by the Director-General, may give 18 a certificate as to any one or more of the following: 19 (a) the receipt of property by a licensee or a licensee's associate, 20 the nature and value of the property received, the date of its 21 receipt by the licensee or associate and the identity of the 22 person from whom it was received, 23 (b) the taking or transfer of property, the nature and value of the 24 property, the date of its taking or transfer and the identity of the 25 person by whom it was taken or to whom it was transferred, 26 (c) the payment of money, the amount of money paid, the date of 27 the payment and the identity of the person who received the 28 payment, 29 (d) the entries made in the records of a licensee or a licensee's 30 associate and the truth or falsity of the entries, 31 (e) the use of property unlawfully or in breach of trust. 32 (2) A certificate under this section is admissible in any proceedings taken 33 by a receiver under this Division and is evidence of the matters 34 specified in the certificate. 35 Page 99

Clause 158 Property, Stock and Business Agents Bill 2001 Part 10 Management and receivership Division 3 Receivership 158 Receiver taken to be beneficially entitled to property 1 (1) Proceedings taken under this Division in the name of a receiver in 2 relation to any property may be so taken as if the receiver were 3 beneficially entitled to the property. 4 (2) If receivable property has been taken by, or paid or transferred to, a 5 person or otherwise used unlawfully or in breach of trust, a receiver 6 may take proceedings in the name of the receiver as if the receiver 7 were beneficially entitled to the property at the time the property was 8 so taken, paid, transferred or used. 9 159 Receiver may deal with property 10 (1) A receiver may deal with receivable property in any manner in which 11 the relevant licensee or relevant associate could, had the receiver not 12 been appointed, have dealt with it. 13 (2) A receiver must, as soon as possible after receiving receivable 14 property, vest the property in the person on whose behalf it was held 15 by the relevant licensee or relevant associate. 16 160 Other powers of receiver 17 (1) A receiver may: 18 (a) prove, grant, claim or draw a dividend in respect of a debt that 19 is receivable property, and 20 (b) take proceedings to recover damages for a tort committed in 21 relation to receivable property, and 22 (c) give a receipt for money that is receivable property, and 23 (d) employ a person to advise or act in relation to receivable 24 property, in the name of the receiver or in the name of the 25 relevant licensee or relevant associate. 26 (2) A receipt given to a person under subsection (1) (c) discharges the 27 person from any responsibility to see to the application of the money 28 for which the receipt was given. 29 (3) A receiver is not, in the exercise of his or her functions as a receiver, 30 a personal representative of a deceased licensee. 31 Page 100

Property, Stock and Business Agents Bill 2001 Clause 161 Management and receivership Part 10 Receivership Division 3 161 Notice to claim receivable property 1 (1) A receiver may give notice to: 2 (a) the relevant licensee or relevant associate, or 3 (b) any other person, that any claim the licensee, associate or other 4 person has to receivable property must be submitted to the 5 receiver within 1 month after the giving of the notice or within 6 such longer period as is stated in the notice. 7 (2) A claim submitted in response to such a notice must state: 8 (a) full particulars of the property, and 9 (b) the grounds of the claim. 10 (3) A receiver may disregard a claim made by a licensee, a licensee's 11 associate or any other person who has been given a notice under this 12 section if the claim is not made in accordance with the notice. 13 (4) The relevant licensee or relevant associate is not entitled: 14 (a) to enforce a claim to receivable property, or 15 (b) except against a client--to the benefit of a lien against a 16 document that is receivable property, unless all other 17 enforceable claims against the property have been satisfied and 18 the expenses of the receivership paid. 19 162 Lien for costs on receivable property 20 (1) If a licensee claims a lien for costs on receivable property, the receiver 21 may serve on the licensee a written notice requiring the licensee to give 22 to the receiver, within a specified period of not less than 1 month: 23 (a) particulars sufficient to identify the property, and 24 (b) a detailed bill of costs. 25 (2) The notice, or a subsequent written notice served on the licensee, may 26 require the licensee to apply for an assessment of the bill of costs 27 within a reasonable time specified in the notice. 28 (3) If the licensee requests the receiver in writing to allow access to 29 receivable property to enable the licensee to have a bill of costs 30 assessed, the time allowed for taxation does not begin to run until 31 access is provided. 32 Page 101

Clause 162 Property, Stock and Business Agents Bill 2001 Part 10 Management and receivership Division 3 Receivership (4) If a requirement of a notice under this section is not complied with, the 1 receiver may disregard the claim in dealing with the property claimed 2 to be subject to a lien. 3 163 Examination by receiver 4 (1) The Supreme Court may, on the application of a receiver, make such 5 order as it thinks fit for the examination by the receiver of a licensee 6 or other person in relation to receivable property. 7 (2) On an examination under this section: 8 (a) the licensee or other person may be represented by a solicitor 9 or barrister, and 10 (b) the Supreme Court may put, or allow to be put, to the licensee 11 or other person such questions as it thinks fit. 12 (3) The licensee or other person may be examined on oath or affirmation. 13 (4) The licensee or other person is compellable to answer all questions 14 asked in the course of the examination, including any question to 15 which an objection is made on the ground that the answer would tend 16 to incriminate the licensee or other person. 17 (5) An answer given by a licensee or other person to a question to which 18 such an objection is made is not admissible in any criminal 19 proceedings other than proceedings relating to the falsity of the 20 answer. 21 164 Property not dealt with by receiver 22 (1) If receivable property under the control of the receiver has not been 23 dealt with in accordance with this Division, the receiver must cause 24 notice of that fact to be given to the Director-General and: 25 (a) if the Director-General so requires within 1 month after the 26 notice is given--must transfer and deliver the property to the 27 Director-General, or 28 (b) if no such requirement is made--must transfer and deliver the 29 property to the relevant licensee or relevant associate. 30 (2) If property other than money is transferred or delivered to the 31 Director-General under this section, the Director-General: 32 (a) must deal with it as the Supreme Court directs, and 33 (b) if the property is sold--must treat the proceeds as money paid 34 to the Director-General under this section. 35 Page 102

Property, Stock and Business Agents Bill 2001 Clause 164 Management and receivership Part 10 Receivership Division 3 (3) The Director-General must apply money paid to the Director-General 1 under this section: 2 (a) firstly--towards the satisfaction of wholly or partly unsatisfied 3 claims against the relevant licensee, and 4 (b) secondly--in payment of the expenses of the receivership. 5 (4) Any money paid to the Director-General under this section that is 6 surplus to the requirements of this section must be paid to the relevant 7 licensee or relevant associate. 8 165 Investment of money by receiver 9 (1) A receiver may invest receivable property in any manner in which 10 trustees are authorised by the Trustee Act 1925 to invest trust funds. 11 (2) Income received from an investment under this section, and any profit 12 made on the sale of such an investment, is receivable property. 13 166 Receiver may be reimbursed for damages 14 (1) The Director-General may reimburse a receiver for any damages or 15 costs recovered against the receiver, or an employee or agent of the 16 receiver, for anything done or omitted to be done in good faith in the 17 purported exercise of the receiver's functions. 18 (2) Reimbursement under this section is to be by way of payment from the 19 Operating Account. 20 167 Payment of expenses of receivership 21 (1) So much of the expenses of receivership as have not otherwise been 22 paid to the receiver are to be paid to the receiver by the 23 Director-General from the Operating Account. 24 (2) An amount paid under this section may be recovered by the 25 Director-General from the relevant licensee as a debt. 26 (3) If the Director-General and a receiver fail to agree on the remuneration 27 to be paid to the receiver, the Supreme Court may, on the application 28 of the Director-General or the receiver, determine the amount to be 29 paid. 30 (4) The Supreme Court, on the application of the relevant licensee: 31 (a) may re-open any agreement between the Director-General and 32 a receiver for remuneration of the receiver, and 33 Page 103

Clause 167 Property, Stock and Business Agents Bill 2001 Part 10 Management and receivership Division 3 Receivership (b) may determine the amount to be paid. 1 168 Supreme Court may review expenses of receivership 2 (1) If, on the application of the relevant licensee, the Supreme Court is 3 satisfied that the expenses of the receivership are excessive, the 4 Supreme Court may order the taking of accounts between the 5 Director-General and the receiver. 6 (2) After the taking of accounts, the Supreme Court: 7 (a) may relieve the relevant licensee from payment of any amount 8 in excess of that determined by the Supreme Court to be fairly 9 payable, or 10 (b) if the receiver has been paid, or allowed on account, an amount 11 that includes such an excess--may order the receiver to repay 12 the excess. 13 169 Receivable property not to be attached 14 The receivable property of a relevant licensee or relevant associate is 15 not liable to be taken in execution of any judgment, order or other 16 process of any court or tribunal. 17 170 Applications for directions by receiver, licensee etc 18 (1) A receiver, a licensee or a licensee's associate who holds receivable 19 property, or a person who claims receivable property so held, may 20 apply to the Supreme Court for directions as to the performance of the 21 receiver's functions. 22 (2) On an application under this section, the Supreme Court may give 23 such directions as it thinks fit. 24 171 Supreme Court may give general directions to receiver 25 (1) The Supreme Court: 26 (a) may authorise a receiver to do such things in the exercise of the 27 receiver's functions as the Supreme Court considers 28 appropriate, and 29 (b) may give directions for the exercise of any such authority. 30 (2) A receiver must exercise any authority so conferred in accordance with 31 any direction so given. 32 Page 104

Property, Stock and Business Agents Bill 2001 Clause 172 Management and receivership Part 10 Receivership Division 3 172 Receiver to report to Supreme Court and Director-General 1 (1) A receiver must, at such times and in respect of such periods as the 2 Supreme Court directs, submit reports on the receivership to the 3 Supreme Court and the Director-General. 4 (2) A report is to deal with such matters as the Supreme Court directs and 5 with such other matters as the receiver considers appropriate to include 6 in the report. 7 (3) On the conclusion of a receivership, the receiver must lodge with the 8 Supreme Court all of the receiver's records that relate to the 9 receivership. 10 (4) Unless the Supreme Court orders their destruction, records lodged 11 under this section are to remain in the custody of the Court. 12 173 Termination of appointment of receiver 13 (1) The Supreme Court: 14 (a) may terminate the appointment of a receiver, and 15 (b) may, if it thinks fit, appoint a new receiver either immediately 16 or at any time within the next 14 days. 17 (2) The former receiver must transfer or deliver the receivable property: 18 (a) if a new receiver is appointed--to the new receiver in 19 accordance with any directions given by the Supreme Court, or 20 (b) if a new receiver is not appointed and if the relevant licensee or 21 relevant associate so requires by notice in writing served on the 22 receiver--to the licensee or associate. 23 Maximum penalty: 50 penalty units. 24 (3) The receivable property must, in accordance with any directions given 25 by the Supreme Court, be transferred or delivered as soon as possible 26 after the former receiver's appointment is terminated. 27 (4) A former receiver is not required to comply with the requirements of 28 this section unless: 29 (a) the expenses of the receivership have been paid to the 30 Director-General, or 31 (b) the Director-General otherwise directs in relation to those 32 expenses. 33 Page 105

Clause 173 Property, Stock and Business Agents Bill 2001 Part 10 Management and receivership Division 3 Receivership (5) Subject to any direction given by the Supreme Court, a former receiver 1 may transfer or deliver receivable property to the relevant licensee or 2 relevant associate without having been given a notice under subsection 3 (2) (b). 4 174 Obstruction of receivers 5 A person must not hinder, obstruct or delay a receiver in the exercise 6 of his or her functions under this Division. 7 Maximum penalty: 100 penalty units. 8 Page 106

Property, Stock and Business Agents Bill 2001 Clause 175 Compensation Fund Part 11 Establishment and management Division 1 Part 11 Compensation Fund 1 Division 1 Establishment and management 2 175 Compensation Fund 3 The Director-General is to cause to be established and maintained in 4 the accounting records of the Department a fund, called the Property 5 Services Compensation Fund. 6 176 Money payable to Compensation Fund 7 The Compensation Fund is to consist of: 8 (a) any amounts paid by licensees by way of levy under this Act, 9 and 10 (b) any amounts required or permitted to be paid to the credit of the 11 Compensation Fund, whether by this Act or any other Act, and 12 (c) any amounts payable to the Compensation Fund from the 13 Statutory Interest Account, and 14 (d) income from the investment of the Compensation Fund. 15 177 Application of money in Compensation Fund 16 (1) Money in the Compensation Fund may be applied for any purpose for 17 which it is required or permitted to be applied by or under this or any 18 other Act. 19 (2) The Director-General may apply money held in the Compensation 20 Fund (in such order as the Director-General decides) for all or any of 21 the following purposes: 22 (a) satisfying claims (including costs) established against the 23 Compensation Fund in accordance with this or any other Act, 24 (b) meeting legal expenses incurred by the Director-General in 25 connection with claims against the Compensation Fund, 26 (c) meeting expenses incurred by the Director-General in or in 27 relation to appearances before a court or tribunal with respect 28 to licences under this Act or the Conveyancers Licensing 29 Act 1995, 30 (d) meeting the costs of administering the Compensation Fund, 31 Page 107

Clause 177 Property, Stock and Business Agents Bill 2001 Part 11 Compensation Fund Division 1 Establishment and management (e) investing in schemes that relate to the provision of residential 1 accommodation or, subject to such terms and conditions as may 2 be prescribed by the regulations, in loans to authorised deposit- 3 taking institutions. 4 (3) The Treasurer may determine whether any such money is to be 5 invested in any such scheme or loan and the amount to be invested in 6 a scheme or loan. 7 Division 2 Contributions and levies 8 178 Contributions 9 (1) A contribution to the Compensation Fund is to be paid by an applicant 10 for a licence at the time the application is made. 11 (2) The amount of the contribution is the amount prescribed by the 12 regulations. The regulations may prescribe different amounts of 13 contributions for different kinds of licences. 14 (3) The regulations may provided for a single contribution to be paid if a 15 person applies for more than one kind of licence. 16 (4) Contributions under this section are in addition to any fees and levies 17 payable under this Act. 18 (5) If a licence is not granted pursuant to an application, any contribution 19 to the Compensation Fund paid by the applicant is to be refunded. 20 179 Levies 21 (1) If the Director-General is at any time of the opinion that the 22 Compensation Fund is likely to be insufficient to meet the liabilities to 23 which it is subject, the Director-General may, with the approval of the 24 Minister, impose a levy on each licensee. 25 (2) A levy is payable to the Director-General at the time, and in the 26 manner, fixed by the Director-General. 27 (3) The Director-General may, in any special case, allow time for the 28 payment of the whole or part of any levy. 29 (4) If, after being given the notice prescribed by the regulations, a licensee 30 fails to pay a levy in accordance with this section, the 31 Director-General may suspend the licence held by the licensee while 32 the failure continues. 33 Page 108

Property, Stock and Business Agents Bill 2001 Clause 180 Compensation Fund Part 11 Claims Division 3 Division 3 Claims 1 180 Definitions 2 In this Division: 3 associate of a licensee means: 4 (a) an employee or agent of the licensee, or 5 (b) a person who has the apparent control or charge for the time 6 being of the business of the licensee or of any office at which 7 that business is carried on. 8 failure to account has the meaning given in section 181. 9 pecuniary loss from a failure to account includes: 10 (a) all costs (including the legal costs and disbursements of making 11 and proving a claim), charges and expenses that a claimant has 12 suffered or incurred as a direct consequence of the failure to 13 account, and 14 (b) all interest on money or other valuable property that a claimant 15 would have received but for the failure to account for the 16 money or other property, with that interest calculated to the date 17 on which the Director-General determines the claimant's claim 18 or a judgment is recovered against the Director-General in 19 relation to the Compensation Fund in respect of that money or 20 other property. 21 181 Meaning of "failure to account" 22 (1) In this Division, a reference to a failure to account is a reference to a 23 failure by a licensee to account for money or other valuable property 24 entrusted to the licensee or an associate of the licensee in the course of 25 the licensee's business as a licensee. 26 (2) This Division applies only to a failure to account that arises from an 27 act or omission of the licensee or associate. 28 (3) For the purposes of this Division, it does not matter that the failure to 29 account occurred after the licensee ceased to be licensed, if the money 30 or other valuable property concerned was entrusted to the licensee (or 31 an associate of the licensee) before the licensee ceased to be licensed. 32 Page 109

Clause 181 Property, Stock and Business Agents Bill 2001 Part 11 Compensation Fund Division 3 Claims (4) This Division applies whether the failure to account, or the act or 1 omission, took place before or after the commencement of this 2 Division. 3 182 Division applies when person reasonably believed to be a licensee 4 (1) This Division extends to a case where a person entrusts money or other 5 valuable property to another person reasonably believing that the other 6 person is a licensee or an associate of a licensee and that the money or 7 other valuable property is entrusted in the course of a licensee's 8 business as licensee. 9 (2) In such a case, the person believed to be a licensee is taken to be a 10 licensee for the purposes of the operation of this Division and the 11 money or other valuable property is taken to have been entrusted in the 12 course of the licensee's business as licensee. 13 183 Claims against Compensation Fund 14 (1) The Compensation Fund is held, and is to be applied, for the purpose 15 of compensating persons who suffer pecuniary loss because of a failure 16 to account. 17 (2) A person who claims to have suffered a pecuniary loss because of a 18 failure to account may make a claim against the Compensation Fund, 19 but only if the claim is made in writing to the Director-General within: 20 (a) a period of 12 months after the person has become aware of the 21 failure to account, or 22 (b) a period of 2 years after the date of the failure to account, 23 whichever period ends first. 24 (3) However, a claim caused by a failure of a licensee (or an employee or 25 agent of a licensee) to lodge a rental bond with the Rental Bond Board 26 may also be made at any time within one year after the termination of 27 the tenancy agreement. 28 (4) A licensee does not have a claim against the Compensation Fund in 29 respect of a pecuniary loss suffered in connection with the licensee's 30 business as a licensee because of a failure to account. 31 (5) Subject to this section, the Director-General may receive and allow, in 32 whole or in part, any claim against the Compensation Fund at any time 33 after the relevant failure to account arose. 34 Page 110

Property, Stock and Business Agents Bill 2001 Clause 183 Compensation Fund Part 11 Claims Division 3 (6) The Director-General may disallow any claim, in whole or in part, in 1 appropriate cases. In particular the Director-General may disallow a 2 claim to the extent that pecuniary loss was suffered as a result of a 3 failure to mitigate loss or was occasioned by unreasonable delay in 4 making a claim. 5 184 Legal proceedings 6 (1) A person cannot, without the leave of the Director-General, commence 7 any proceedings in relation to the Compensation Fund unless the 8 person has made a claim and the Director-General has disallowed the 9 person's claim. 10 (2) A person cannot recover from the Compensation Fund by way of any 11 such proceedings an amount greater than the amount of pecuniary loss 12 suffered by the person, after deducting from the total amount of the 13 pecuniary loss: 14 (a) the amount or value of all money or other benefits received or 15 recovered from any source (other than the Compensation Fund) 16 in reduction of the pecuniary loss, and 17 (b) any such amount or value that, in the opinion of the 18 Director-General, might have been received or recovered but 19 for the person's neglect or default. 20 (3) Any proceedings in relation to any claim against the Compensation 21 Fund are to be as for a debt due by the Crown and are to be brought in 22 a court of competent jurisdiction. The proceedings do not lie against 23 the Director-General. 24 (4) In those proceedings: 25 (a) all defences that would have been available to the licensee in 26 relation to whom the claim arose are available to the Crown, 27 and 28 (b) all questions of costs are in the discretion of the court or, where 29 the proceedings are tried with a jury, the judge presiding at the 30 trial. 31 (5) Any order for the payment of costs made by a Local Court operates as 32 a judgment debt under the Local Courts (Civil Claims) Act 1970 and 33 is enforceable as such under that Act. 34 Page 111

Clause 184 Property, Stock and Business Agents Bill 2001 Part 11 Compensation Fund Division 3 Claims (6) No proceedings can be brought against the Crown in relation to a 1 claim against the Compensation Fund after the end of: 2 (a) a period of 6 months after the claimant has been notified that 3 the claim has been disallowed, or 4 (b) such longer period as the court may permit, on sufficient cause 5 being shown and on such terms as it thinks fit. 6 185 Limits on amounts recoverable 7 (1) The amount that a person may recover from the Compensation Fund 8 cannot, in any case or in any event, exceed $500,000 or, if another 9 amount is prescribed by the regulations, the prescribed amount. 10 (2) The aggregate sum that may be applied in compensating all persons 11 who suffer or incur pecuniary loss because of a failure to account, or 12 of related failures to account, cannot exceed $2,000,000 or, if another 13 amount is prescribed by the regulations, the prescribed amount. 14 (3) The Director-General may disregard subsection (2) in the case of 15 successive failures to account by a licensee, to the extent that the 16 Director-General is satisfied that the failures are not connected. 17 (4) If the total amount of claims or judgments (or both) exceeds the 18 aggregate sum provided for by this section, the Director-General has 19 an unfettered discretion to determine the division and allocation of the 20 available money among the various parties (whether or not to the 21 exclusion of any one or more of them). 22 186 Advertisements 23 (1) The Director-General may cause to be published a notice relating to a 24 defaulting licensee and fixing a date within which claims must be 25 made under this Part. 26 (2) The notice is to be published in a newspaper circulating in the district 27 in which the defaulting licensee is or was carrying on business, and 28 also in a newspaper circulating in Sydney. One newspaper may satisfy 29 both requirements. 30 (3) Any claim not made in writing on or before the date fixed by the 31 notice is barred, unless the Director-General otherwise determines. 32 (4) After that date, the Director-General may distribute compensation in 33 accordance with this Part, having regard only to judgments obtained 34 and claims allowed against the Compensation Fund. 35 Page 112

Property, Stock and Business Agents Bill 2001 Clause 187 Compensation Fund Part 11 Claims Division 3 187 Subrogation 1 (1) On payment out of the Compensation Fund in settlement in whole or 2 in part of a claim under this Act, the Crown is subrogated, to the 3 extent of the payment, to all the rights and remedies of the claimant 4 against the licensee, or the former licensee, in relation to whom the 5 claim arose, or any other person. 6 (2) A certificate given by the Director-General certifying that a specified 7 amount has been paid out of the Compensation Fund in settlement in 8 whole or in part of a claim under this Act is evidence of the matter 9 certified. 10 (3) In the enforcement of any rights or remedies to which the 11 Director-General is subrogated under this section for the purpose of 12 recovering an amount paid out of the Compensation Fund, the amount 13 is taken to be a debt due to the Crown and may be recovered 14 accordingly. 15 188 Recovery of payments from directors 16 (1) This section applies when the payment of an amount out of the 17 Compensation Fund has been made as a consequence of the act or 18 omission of a body corporate (including the payment of any amount to 19 an administrator of the affairs and property of the body corporate). 20 (2) The Director-General may recover, jointly or severally, from any 21 person who was a director or persons who were directors of the body 22 corporate at the time of the relevant act or omission, the amount of the 23 payment as a debt in any court of competent jurisdiction. 24 (3) In any proceedings for the recovery of an amount under this section, 25 judgment is not to be entered against a defendant who proves that the 26 act or omission occurred without the defendant's express or implied 27 authority or consent. 28 (4) Proceedings may be brought for the recovery of an amount under this 29 section whether or not the person against whom the proceedings are 30 brought, or any other person, has been convicted of an offence in 31 respect of the act or omission as a consequence of which the amount 32 was paid. 33 Page 113

Clause 188 Property, Stock and Business Agents Bill 2001 Part 11 Compensation Fund Division 3 Claims (5) When this section renders a person or persons liable to pay an amount 1 as a consequence of an act or omission of a body corporate, the 2 payment by the person or either or any of those persons of the whole 3 or any part of the amount does not render the body corporate liable to 4 the person concerned in respect of the amount so paid. 5 189 Production of documents 6 (1) The Director-General may, at any time and from time to time, require 7 the production of documents necessary to support any claim under this 8 Act, or available for that purpose, or for the purpose of exercising 9 functions in respect of a defaulting licensee. 10 (2) The Director-General may reject a claim if documents are not 11 produced as required. 12 190 Satisfaction of claims and judgments 13 (1) A claim or judgment against the Compensation Fund can only be 14 satisfied to the extent of money in the Compensation Fund (either then 15 or at a later time). No other money or property (whether of the Crown 16 or otherwise) is available for that purpose. 17 (2) If a number of claims or judgments (or both) against the 18 Compensation Fund cannot be satisfied because of an insufficiency of 19 money in the Compensation Fund, the Director-General has an 20 unfettered discretion to determine the division and allocation of the 21 available money among the various parties (whether or not to the 22 exclusion of any one or more of them). 23 Division 4 Examination of accounts of licensees and former 24 licensees 25 191 Definitions 26 In this Division: 27 accounts examiner means a person appointed as an accounts 28 examiner under this Division. 29 associate has the same meaning as in Division 3. 30 Page 114

Property, Stock and Business Agents Bill 2001 Clause 192 Compensation Fund Part 11 Examination of accounts of licensees and former licensees Division 4 192 Appointment of accounts examiner to examine licensee's accounts 1 (1) For the purpose of safeguarding the Compensation Fund in relation to 2 the affairs of a licensee, the Director-General may, at any time and 3 from time to time, appoint an appropriately qualified person as an 4 accounts examiner to examine the accounts kept by the licensee in 5 connection with the licensee's business. 6 (2) A person is appropriately qualified for appointment if the person has 7 such qualifications or experience as in the opinion of the 8 Director-General are appropriate for the purpose of exercising 9 functions under this Division. 10 (3) The appointment of an accounts examiner is to be by instrument in 11 writing. 12 (4) The Director-General may publicly notify the appointment of an 13 accounts examiner in relation to the accounts of a licensee. 14 193 Accounts examiner to report on accounts 15 (1) An accounts examiner is to furnish to the Director-General a 16 confidential report about the accounts concerned, indicating whether 17 there is any irregularity or alleged or suspected irregularity in the 18 accounts or any other matter that in the person's opinion should, in the 19 interests of the Compensation Fund, be further investigated. 20 (2) A copy of the report is required to be sent by post by the 21 Director-General to the licensee as soon as practicable. 22 194 Powers of accounts examiner 23 (1) On production by an accounts examiner of his or her instrument of 24 appointment, the accounts examiner may require the licensee (or, in 25 the absence of the licensee, an associate of the licensee) to do any one 26 or more of the following things: 27 (a) produce to the accounts examiner or any assistant of the 28 accounts examiner all books, papers, accounts, securities or 29 other documents relating to the business of the licensee, or 30 (b) produce to the accounts examiner or any assistant of the 31 accounts examiner any written record made and kept by the 32 licensee under this Act, or 33 (c) give the accounts examiner or any assistant of the accounts 34 examiner all information relating to any material required to be 35 produced under this section, or 36 Page 115

Clause 194 Property, Stock and Business Agents Bill 2001 Part 11 Compensation Fund Division 4 Examination of accounts of licensees and former licensees (d) produce to the accounts examiner or any assistant of the 1 accounts examiner all authorities and orders to financial 2 institutions and other documents that may be reasonably 3 required. 4 (2) The licensee or associate is guilty of an offence if the licensee or 5 associate, without lawful justification or excuse (proof of which lies on 6 the licensee or associate): 7 (a) refuses or fails to comply with a requirement under this section, 8 or 9 (b) otherwise hinders, obstructs or delays an accounts examiner in 10 the exercise or performance of the accounts examiner's 11 functions under this sections. 12 Maximum penalty: 50 penalty units. 13 195 Confidentiality 14 (1) An accounts examiner must not communicate to any person (other 15 than a partner, employer, employee or assistant of the accounts 16 examiner): 17 (a) the fact of the accounts examiner's appointment under this 18 Division, or 19 (b) any matter that comes to the accounts examiner's knowledge in 20 the course of the examination, 21 except in the course of preparing and furnishing the report to the 22 Director-General or in the same circumstances as information obtained 23 in connection with the administration or execution of this Act can be 24 disclosed under section 215. 25 (2) A partner, employer, employee or assistant (the colleague) of the 26 accounts examiner must not communicate to any person (other than 27 the accounts examiner or a partner, employer, employee or assistant of 28 the accounts examiner): 29 (a) the fact of the accounts examiner's appointment under this 30 Division, or 31 (b) any matter that comes to the colleague's knowledge in the 32 course of the examination, 33 except in the course of the preparing and furnishing of the report to the 34 Director-General or in the same circumstances as information obtained 35 Page 116

Property, Stock and Business Agents Bill 2001 Clause 195 Compensation Fund Part 11 Examination of accounts of licensees and former licensees Division 4 in connection with the administration or execution of this Act can be 1 disclosed under section 215. 2 (3) A person who contravenes this section is guilty of an offence. 3 Maximum penalty: 50 penalty units. 4 196 Former licensees 5 This Division extends, with any necessary adaptations, to a former 6 licensee, so that a reference in this Division to a licensee includes a 7 reference to a former licensee and any person who has the possession, 8 custody or control of a written record relating to a former licensee and 9 preserved in accordance with this Act. 10 Page 117

Clause 197 Property, Stock and Business Agents Bill 2001 Part 12 Property Services Statutory Interest Account Part 12 Property Services Statutory Interest Account 1 197 Statutory Interest Account 2 The Director-General is to cause to be established and maintained in 3 the accounting records of the Department an account called the 4 Property Services Statutory Interest Account. 5 198 Money payable to Statutory Interest Account 6 The Statutory Interest Account is to consist of: 7 (a) any money required or permitted to be paid to the credit of the 8 Statutory Interest Account, whether by this Act or any other 9 Act, and 10 (b) income from the investment of the Statutory Interest Account. 11 199 Application of money in Statutory Interest Account 12 (1) Money in the Statutory Interest Account may be applied for any 13 purpose for which it is required or permitted to be applied by or under 14 this or any other Act. 15 (2) The Director-General may, with the consent of the Minister, apply 16 money held in the Statutory Interest Account for all or any of the 17 following purposes: 18 (a) supplementing the Compensation Fund by such amount as may 19 be needed to enable the current liabilities of the fund to be met, 20 (b) providing grants or loans for providing or undertaking 21 education or research programs relating to the property services 22 industry (as defined in section 25I of the Fair Trading 23 Act 1987) and approved by the Minister, 24 (c) meeting the costs of administering this Act, the Conveyancers 25 Licensing Act 1995, the Valuers Registration Act 1975 and any 26 other Act prescribed by the regulations for the purposes of this 27 paragraph (or the prescribed provisions of any other Act), 28 (d) meeting the costs of the administration of the Property Services 29 Advisory Council, 30 (e) meeting the costs of operating a scheme or schemes for 31 resolving disputes arising between consumers and providers of 32 property services, 33 Page 118

Property, Stock and Business Agents Bill 2001 Clause 199 Property Services Statutory Interest Account Part 12 (f) investing in schemes that relate to the provision of residential 1 accommodation or, subject to such terms and conditions as may 2 be prescribed by the regulations, in loans to authorised deposit- 3 taking institutions. 4 (3) The Treasurer may determine whether any such money is to be 5 invested in any such scheme or loan and the amount to be invested in 6 a scheme or loan. 7 (4) In this section: 8 property services means services provided in the property services 9 industry as defined in section 25I of the Fair Trading Act 1987. 10 200 Application of money for purposes of certain Acts 11 (1) The following amounts are also payable from the Statutory Interest 12 Account: 13 (a) such contributions towards the costs, charges and expenses of 14 administration of the Residential Tenancies Act 1987, the 15 Consumer, Trader and Tenancy Tribunal Act 2001 and the 16 Residential Parks Act 1998 as may be agreed from time to time 17 by the Minister and the Ministers administering the Landlord 18 and Tenant (Rental Bonds) Act 1977, the Residential Tenancies 19 Act 1987, the Consumer, Trader and Tenancy Tribunal 20 Act 2001 and the Residential Parks Act 1998, 21 (b) such contributions towards the costs, charges and expenses of 22 the administration of the Retirement Villages Act 1999 as may 23 be authorised by the Director-General with the consent of the 24 Minister, 25 (c) such contributions as may be agreed by the Minister and the 26 Minister administering the Fair Trading Act 1987 towards the 27 costs, charges and expenses of the administration of that Act, 28 (d) such contributions as may be agreed by the Minister and the 29 Minister administering the Strata Schemes Management 30 Act 1996 and Community Land Management Act 1989 towards 31 the costs, charges and expenses of the administration of those 32 Acts. 33 (2) Contributions referred to in this section are to be paid in the manner 34 determined by the Treasurer. 35 Page 119

Clause 201 Property, Stock and Business Agents Bill 2001 Part 13 Enforcement Part 13 Enforcement 1 201 Authorised officers 2 (1) In this Act: 3 authorised officer means: 4 (a) an officer of the Department for the time being appointed under 5 this Part as an authorised officer, or 6 (b) an investigator appointed under section 18 of the Fair Trading 7 Act 1987, or 8 (c) a police officer. 9 (2) The Director-General may appoint any officer of the Department as an 10 authorised officer for the purposes of this Act. 11 (3) An authorised officer who is not a police officer is to be provided by 12 the Director-General with a certificate of identification. 13 (4) An authorised officer (other than a police officer) must, when 14 exercising on any premises any function of the authorised officer 15 under this Act, produce the officer's certificate of identification to any 16 person apparently in charge of the premises who requests its 17 production. 18 202 Purposes for which powers of authorised officers can be exercised 19 An authorised officer may exercise the powers conferred by this Part 20 for the purpose of: 21 (a) ascertaining whether the provisions of this Act or the 22 regulations are being complied with or have been contravened, 23 or 24 (b) investigating a complaint made or intended to be made under 25 this Act. 26 203 Powers of entry, inspection etc 27 (1) An authorised officer may enter and inspect at any reasonable time any 28 premises that the officer believes on reasonable grounds are used for 29 the carrying on of the business of an agent, whether or not the business 30 is being carried on by the holder of a licence. 31 Page 120

Property, Stock and Business Agents Bill 2001 Clause 203 Enforcement Part 13 (2) While on premises entered under this section or under the authority of 1 a search warrant under this Part, an authorised officer may do any one 2 or more of the following: 3 (a) require any person on those premises to produce any records in 4 the possession or under the control of that person relating to the 5 carrying on of the business of an agent, 6 (b) inspect, take copies of or extracts from, or make notes from, 7 any such records, and for that purpose may take temporary 8 possession of any such records, 9 (c) take possession of any such records if the authorised officer 10 considers it necessary to do so for the purpose of obtaining 11 evidence or protecting evidence from destruction, 12 (d) take such photographs, films and audio, video and other 13 recordings as the authorised officer considers necessary, 14 (e) require any person on those premises to answer questions or 15 otherwise furnish information in relation to the carrying on of 16 the practice of the business of an agent or a contravention of a 17 provision of this Act or the regulations, 18 (f) require the owner or occupier of those premises to provide the 19 authorised officer with such assistance and facilities as is or are 20 reasonably necessary to enable the authorised officer to exercise 21 the functions of an authorised officer under this section. 22 (3) An authorised officer is not entitled to enter a part of premises used for 23 residential purposes, except: 24 (a) with the consent of the occupier of the part, or 25 (b) a part of premises on which an auction of residential property 26 is being conducted, or 27 (c) under the authority of a search warrant. 28 204 Obstruction etc of authorised officers 29 A person must not: 30 (a) without reasonable excuse, refuse or fail to comply with any 31 requirement made or to answer any question asked by an 32 authorised officer under the authority of this Part, or 33 (b) wilfully delay, hinder or obstruct an authorised officer in the 34 exercise of the officer's functions under this Part, or 35 Page 121

Clause 204 Property, Stock and Business Agents Bill 2001 Part 13 Enforcement (c) furnish an authorised officer exercising functions under this 1 Part with information knowing it to be false or misleading in a 2 material particular. 3 Maximum penalty: 100 penalty units or imprisonment for 6 months, 4 or both. 5 205 Taking possession of records to be used as evidence 6 (1) If an authorised officer takes possession of any records under this Part 7 for the purpose of obtaining evidence or protecting evidence from 8 destruction, they may be retained by the officer until the completion of 9 any proceedings (including proceedings on appeal) in which they may 10 be evidence. 11 (2) The person from whom the records are taken must be provided, within 12 a reasonable time after the records are taken, with a copy of the records 13 certified by an authorised officer as a true copy. 14 (3) A copy of records provided under this section is, as evidence, of equal 15 validity to the records of which it is certified to be a copy. 16 206 Search warrants 17 (1) An authorised officer may apply to an authorised justice for the issue 18 of a search warrant for premises if the officer believes on reasonable 19 grounds: 20 (a) that a provision of this Act or the regulations is being or has 21 been contravened on the premises, or 22 (b) that there is on the premises evidence of a contravention of a 23 provision of this Act or the regulations. 24 (2) An authorised justice to whom such an application is made may, if 25 satisfied that there are reasonable grounds for doing so, issue a search 26 warrant authorising an authorised officer named in the warrant: 27 (a) to enter and inspect the premises, and 28 (b) to exercise on the premises any function of an authorised 29 officer under this Part. 30 (3) Part 3 of the Search Warrants Act 1985 applies to a search warrant 31 issued under this section. 32 (4) In this section, authorised justice has the same meaning as in the 33 Search Warrants Act 1985. 34 Page 122

Property, Stock and Business Agents Bill 2001 Clause 207 Enforcement Part 13 207 Injunctions 1 (1) On the application of the Director-General, the Supreme Court may 2 grant an injunction restraining a threatened or apprehended 3 contravention, or the continuation of a contravention, of a provision of 4 this Act or the regulations. 5 (2) An injunction may be granted without the Director-General being 6 required to show a likelihood of damage. 7 (3) If in the opinion of the Court it is desirable to do so, the Court may 8 grant an interim injunction pending determination of the application. 9 (4) When the Director-General makes an application for the grant of an 10 injunction under this section, the Court is not to require the Director- 11 General or any other person, as a condition of granting an interim 12 injunction, to give an undertaking as to damages. 13 (5) This section does not limit any provision of the Fair Trading Act 1987. 14 Page 123

Clause 208 Property, Stock and Business Agents Bill 2001 Part 14 Offences and proceedings Division 1 Offences Part 14 Offences and proceedings 1 Division 1 Offences 2 208 Fraudulent conversion and false accounts of money received by 3 licensee or registered person 4 (1) This section applies to: 5 (a) any money received by a licensee or registered person on 6 behalf of any person in respect of any transaction in the 7 licensee's or registered person's capacity as a licensee or 8 registered person, or any part of any such money, and 9 (b) any money so received that is held by the licensee or registered 10 person as a stakeholder or in trust pending the completion of 11 any transaction. 12 (2) If the licensee or registered person fraudulently converts the money or 13 any part of that money to his or her own use or to the use of any other 14 person, the licensee or registered person is guilty of an indictable 15 offence and liable to imprisonment for a term of not more than 10 16 years. 17 (3) If the licensee or registered person fraudulently omits to account for, 18 deliver or pay the money or any part of the money to the person from 19 whom it was received or to the person or persons entitled to it, the 20 licensee or registered person is guilty of an indictable offence and 21 liable to imprisonment for a term of not more than 10 years. 22 (4) If the licensee or registered person fraudulently renders an account of 23 the money or any part of the money knowing the account to be false 24 in any material particular, the licensee or registered person is guilty of 25 an indictable offence and liable to imprisonment for a term of not more 26 than 10 years. 27 (5) On the prosecution of a person for an offence under this section it is 28 not necessary to prove the fraudulent conversion by the accused of any 29 specific sum of money if there is proof of a general deficiency on the 30 examination of the books of account, or entries kept, or made by the 31 accused, or otherwise, and the jury are satisfied that the accused 32 fraudulently converted the deficient money or any part of it. 33 Page 124

Property, Stock and Business Agents Bill 2001 Clause 209 Offences and proceedings Part 14 Offences Division 1 209 Fraudulent accounts for expenses, commission and other charges 1 If a licensee or registered person fraudulently renders an account of 2 expenses, commission or other charges incidental to any transaction or 3 proposed or contemplated transaction as a licensee or registered person 4 knowing the account to be false in any material particular, the licensee 5 or registered person is guilty of an indictable offence and liable to 6 imprisonment for a term of not more than 10 years. 7 210 Operation of Crimes Act not affected 8 Nothing in this Division affects the generality of any provisions of the 9 Crimes Act 1900. 10 Division 2 Proceedings 11 211 Proceedings for offences 12 (1) Proceedings for an offence under this Act or the regulations may be 13 taken and prosecuted only by the Director-General or, in the name of 14 the Director-General, by a person acting with the authority of the 15 Director-General. 16 (2) Proceedings for an offence under this Act or the regulations may be 17 dealt with: 18 (a) summarily before a Local Court constituted by a Magistrate 19 sitting alone, or 20 (b) summarily before the Supreme Court in its summary 21 jurisdiction. 22 (3) If proceedings are brought in a Local Court, the maximum monetary 23 penalty that the Local Court may impose for the offence is 100 penalty 24 units or such other amount as may be prescribed by the regulations, 25 despite any higher maximum monetary penalty provided in respect of 26 the offence. 27 (4) Despite any proceedings against a person for an offence against this 28 Act or the regulations (whether resulting in a conviction or otherwise) 29 the person remains liable to civil proceedings in the same manner as 30 if the proceedings for an offence had not been taken. 31 Page 125

Clause 212 Property, Stock and Business Agents Bill 2001 Part 14 Offences and proceedings Division 2 Proceedings 212 Penalty notices 1 (1) An authorised officer may serve a penalty notice on a person if it 2 appears to the officer that the person has committed an offence against 3 this Act or the regulations, being an offence prescribed by the 4 regulations as a penalty notice offence. 5 (2) A penalty notice is a notice to the effect that, if the person served does 6 not wish to have the matter determined by a court, the person can pay, 7 within the time and to the person specified in the notice, the amount 8 of the penalty prescribed by the regulations for the offence if dealt with 9 under this section. 10 (3) A penalty notice may be served personally or by post. 11 (4) If the amount of penalty prescribed for an alleged offence is paid under 12 this section, no person is liable to any further proceedings for the 13 alleged offence. 14 (5) Payment under this section is not to be regarded as an admission of 15 liability for the purpose of, and does not in any way affect or 16 prejudice, any civil claim, action or proceeding arising out of the same 17 occurrence. 18 (6) The regulations may: 19 (a) prescribe an offence for the purposes of this section by 20 specifying the offence or by referring to the provision creating 21 the offence, and 22 (b) prescribe the amount of penalty payable for the offence if dealt 23 with under this section, and 24 (c) prescribe different amounts of penalties for different offences 25 or classes of offences. 26 (7) The amount of a penalty prescribed under this section for an offence 27 is not to exceed the maximum amount of penalty that could be 28 imposed for the offence by a court. 29 (8) This section does not limit the operation of any other provision of, or 30 made under, this or any other Act relating to proceedings that may be 31 taken in respect of offences. 32 (9) In this section: 33 authorised officer means a person authorised in writing by the 34 Director-General as an authorised officer for the purposes of this 35 section. 36 Page 126

Property, Stock and Business Agents Bill 2001 Clause 213 Offences and proceedings Part 14 Proceedings Division 2 213 Time for laying information 1 Proceedings for an offence against this Act (other than proceedings 2 that are to be dealt with on indictment) or the regulations may be 3 commenced within 3 years after the date on which the offence is 4 alleged to have been committed. 5 214 Offences by corporations 6 (1) If a corporation contravenes, whether by act or omission, any 7 provision of this Act or the regulations, each director of the 8 corporation, and each person concerned in the management of the 9 corporation, is taken to have contravened the same provision unless 10 the director or person satisfies the court that: 11 (a) he or she was not in a position to influence the conduct of the 12 corporation in relation to its contravention of the provision, or 13 (b) he or she, being in such a position, used all due diligence to 14 prevent the contravention by the corporation. 15 (2) A person may be proceeded against and convicted under a provision 16 pursuant to subsection (1) whether or not the corporation has been 17 proceeded against or been convicted under that provision. 18 (3) Nothing in subsection (1) prejudices or affects any liability imposed by 19 a provision of this Act or the regulations on any corporation by which 20 an offence against the provision is actually committed. 21 Page 127

Clause 215 Property, Stock and Business Agents Bill 2001 Part 15 Administration Part 15 Administration 1 215 Disclosure of information 2 (1) A person must not disclose any information obtained in connection 3 with the administration or execution of this Act unless that disclosure 4 is made: 5 (a) with the consent of the person from whom the information was 6 obtained, or 7 (b) in connection with the administration or execution of this Act, 8 or 9 (c) for the purposes of any legal proceedings arising out of this Act 10 or of any report of any such proceedings, or 11 (d) in accordance with a requirement imposed under the 12 Ombudsman Act 1974, or 13 (e) to a regulatory officer or law enforcement officer, for the 14 purposes of assisting the officer in the exercise of the officer's 15 functions, or 16 (f) as otherwise authorised by this section or the regulations, or 17 (g) with other lawful excuse. 18 Maximum penalty: 20 penalty units or imprisonment for 6 months, or 19 both. 20 (2) The Director-General may communicate to any person directly 21 concerned in any transaction with a licensee in connection with his or 22 her business as a licensee any information furnished to the 23 Director-General in connection with the administration or execution of 24 this Act, in so far as it relates to any such transaction and directly 25 concerns any such person. 26 (3) The Director-General may request and receive information from a law 27 enforcement officer or regulatory officer for the purpose of assisting 28 the Director-General in the exercise of functions under this Act or 29 under any other Act administered by the Minister. 30 (4) The Director-General may enter into agreements and other 31 arrangements for the sharing or exchange of information as authorised 32 by this section. 33 Page 128

Property, Stock and Business Agents Bill 2001 Clause 215 Administration Part 15 (5) In this section: 1 law enforcement officer means: 2 (a) a member of the Police Service, the Australian Federal Police 3 or of the police force of another State or a Territory, or 4 (b) the Director of Public Prosecutions or the Crown Prosecutor of 5 the State or the Director of Public Prosecutions or the Crown 6 Prosecutor of the Commonwealth or of another State or 7 Territory, or 8 (c) any other person, or officer of an authority, responsible for the 9 investigation or prosecution of offences under laws of the State, 10 the Commonwealth, another State or a Territory. 11 regulatory officer means an officer or employee of a government 12 agency (including the government of a jurisdiction outside the State 13 and outside Australia) exercising functions under an enactment with 14 respect to fair trading or an enactment that provides for the issue of 15 licences or other authorities in connection with the undertaking of an 16 activity regulated under the enactment. 17 216 Register 18 (1) The Director-General is to maintain a Register for the purposes of this 19 Act and is to enter and keep in the Register particulars of such of the 20 following as the regulations may require: 21 (a) the licences and certificates of registration issued under this 22 Act, 23 (b) prosecutions taken under this Act and the result of those 24 prosecutions, 25 (c) penalty notices issued under this Act, 26 (d) warning notices that the Director-General has authorised 27 publication of under this Act, 28 (e) formal cautions issued under this Act, 29 (f) disciplinary action taken under this Act, 30 (g) undertakings given under this Act by the holder of a licence or 31 certificate of registration, 32 (h) the appointment of a manager or receiver under this Act, 33 (i) such other matters as may be prescribed by the regulations. 34 Page 129

Clause 216 Property, Stock and Business Agents Bill 2001 Part 15 Administration (2) Any person is entitled to inspect any entry in the Register on payment 1 of such fee as the Director-General may determine for the giving of 2 access to the Register. 3 217 Certificate evidence 4 A document purporting to be a certificate signed by the 5 Director-General and certifying that any person is or is not or was or 6 was not on any date or during any specified period the holder of a 7 licence of a specified class or the holder of a certificate of registration 8 is evidence of the matters certified in all courts and before all persons 9 and bodies authorised by law to receive evidence. 10 218 Delegation 11 The Director-General may delegate the exercise of any function of the 12 Director-General under this Act (other than this power of delegation) 13 to: 14 (a) any public servant employed in the Department of Fair 15 Trading, or 16 (b) any person, or any class of persons, authorised for the purposes 17 of this section by the regulations. 18 Page 130

Property, Stock and Business Agents Bill 2001 Clause 219 Miscellaneous Part 16 Part 16 Miscellaneous 1 219 Fair Trading Act not affected 2 This Act does not limit or otherwise affect the exercise of any function 3 under the Fair Trading Act 1987. 4 220 Service of notices 5 (1) A notice or direction in writing that is required or permitted to be 6 given under this Act may be given as provided by this section. 7 (2) A notice or direction may be given to a person other than a body 8 corporate: 9 (a) by giving it to the person himself or herself, or 10 (b) by leaving it at his or her place of residence with someone who 11 apparently resides there and has apparently reached the age of 12 16 years, or 13 (c) by leaving it at his or her place of employment or business with 14 someone who is apparently employed there and has apparently 15 reached the age of 16 years, or 16 (d) by posting it in a letter addressed to him or her at the address 17 last known to the Director-General of his or her place of 18 residence, employment or business. 19 (3) A notice or direction may be given to a body corporate: 20 (a) by giving it to the secretary of the body corporate, or any other 21 person concerned in the management of the body corporate, 22 personally, or 23 (b) by leaving it at the body corporate's only or principal place of 24 business with someone who is apparently employed there and 25 has apparently reached the age of 16 years, or 26 (c) by posting it in a letter addressed to the body corporate at the 27 address last known to the Director-General of its only or 28 principal place of business. 29 (4) This section does not limit any provision of the Corporations Act. 30 Page 131

Clause 221 Property, Stock and Business Agents Bill 2001 Part 16 Miscellaneous 221 Repeals 1 (1) The Property, Stock and Business Agents Act 1941 is repealed. 2 (2) The Property, Stock and Business Agents (General) Regulation 1993 3 is repealed. 4 222 Savings and transitional provisions 5 Schedule 1 has effect. 6 223 Consequential amendments of Acts 7 Schedule 2 has effect. 8 224 Regulations 9 (1) The Governor may make regulations, not inconsistent with this Act, 10 for or with respect to any matter that by this Act is required or 11 permitted to be prescribed or that is necessary or convenient to be 12 prescribed for carrying out or giving effect to this Act. 13 (2) In particular the Governor may make regulations for or with respect to: 14 (a) prescribing the procedure to be followed in respect of 15 applications under this Act, 16 (b) fixing the maximum amount of remuneration to which a 17 licensee is entitled, by way of commission, fee, gain or reward, 18 for services performed by him or her as a licensee, 19 (c) requiring licensees to display or otherwise publicise or give 20 notice of particulars of their remuneration and prescribe the 21 consequences of a failure to comply with any such 22 requirement, 23 (d) prescribing the accounts and other records to be kept by a 24 licensee and the manner in which they are to be kept, 25 (e) prescribing the conditions applicable to and in respect of the 26 sale by auction of land or livestock, 27 (f) prescribing the manner in which the conditions of the sale by 28 auction of land or livestock must be notified, 29 (g) prescribing exemptions from requirements of this Act. 30 (3) A regulation may create an offence punishable by a penalty not 31 exceeding 40 penalty units in the case of a body corporate or 20 32 penalty units in any other case. 33 Page 132

Property, Stock and Business Agents Bill 2001 Clause 225 Miscellaneous Part 16 225 Review of Act 1 (1) The Minister is to review this Act to determine whether the policy 2 objectives of the Act remain valid and whether the terms of the Act 3 remain appropriate for securing those objectives. 4 (2) The review is to be undertaken as soon as possible after the period of 5 5 years from the date of assent to this Act. 6 (3) A report on the outcome of the review is to be tabled in each House of 7 Parliament within 12 months after the end of the period of 5 years. 8 Page 133

Property, Stock and Business Agents Bill 2001 Schedule 1 Savings and transitional provisions Schedule 1 Savings and transitional provisions 1 (Section 222) 2 1 Definition 3 In this Schedule: 4 repealed Act means the Property, Stock and Business Agents 5 Act 1941. 6 2 Regulations 7 (1) The regulations may contain provisions of a savings or 8 transitional nature consequent on the enactment of the 9 following Acts: 10 this Act 11 (2) Any such provision may, if the regulations so provide, take 12 effect from the date of assent to the Act concerned or a later 13 date. 14 (3) To the extent to which any such provision takes effect from a 15 date that is earlier than the date of its publication in the 16 Gazette, the provision does not operate so as: 17 (a) to affect, in a manner prejudicial to any person (other 18 than the State or an authority of the State), the rights of 19 that person existing before the date of its publication, or 20 (b) to impose liabilities on any person (other than the State 21 or an authority of the State) in respect of anything done 22 or omitted to be done before the date of its publication. 23 3 Licences and certificates of registration under repealed Act 24 (1) A person who was the holder of a licence or certificate of 25 registration under a provision of the repealed Act immediately 26 before its repeal is taken to be the holder of the corresponding 27 licence or certificate of registration under this Act. 28 (2) The corresponding licence or certificate of registration: 29 (a) is taken to have been issued subject to the same 30 conditions to which it was subject under the repealed 31 Act, and 32 Page 134

Property, Stock and Business Agents Bill 2001 Savings and transitional provisions Schedule 1 (b) remains in force for the remainder of the period for 1 which it was issued. 2 Note. Licences under the repealed Act were issued for 3 years. 3 4 Pending applications and objections 4 (1) The repealed Act continues to apply as if it had not been 5 repealed to and in respect of: 6 (a) an application for the issue, renewal or restoration of a 7 licence or certificate of registration under a provision of 8 the repealed Act that was pending immediately before 9 its repeal, and 10 (b) any objection under a provision of the repealed Act in 11 respect of such an application. 12 (2) A licence or certificate of registration issued or renewed under 13 a provision of the repealed Act pursuant to subclause (1) is 14 taken to have been issued or renewed immediately before the 15 repeal of the provision. 16 5 Pending complaints 17 (1) The repealed Act continues to apply as if it had not been 18 repealed to and in respect of a complaint that was made under 19 section 29, 29A, 60 or 60AA of the repealed Act and was 20 pending immediately before the repeal of those sections. 21 (2) For the purposes of the operation of this Schedule, any action 22 taken by a court on such a complaint is to have effect as if it 23 was made immediately before the repeal of the provision of the 24 repealed Act under which the complaint was made. 25 6 Pending appeals 26 (1) Any appeal pending under section 31 or 61 of the repealed Act 27 immediately before the repeal of the section under which the 28 appeal was made is to continue and be determined as if the 29 repealed Act had not been repealed. 30 (2) For the purposes of the operation of this Schedule, the 31 determination of the appeal is to have effect as if the appeal 32 was made immediately before the repeal of the provision of the 33 repealed Act under which it was made. 34 Page 135

Property, Stock and Business Agents Bill 2001 Schedule 1 Savings and transitional provisions 7 Records 1 Any records kept under or for the purposes of a provision of 2 the repealed Act are taken to be kept under or for the purposes 3 of the corresponding provision of this Act. 4 8 Compensation Fund 5 (1) The Compensation Fund under this Act is a continuation of the 6 Compensation Fund under the repealed Act. 7 (2) Any amount payable to the Compensation Fund under the 8 repealed Act immediately before the commencement of this 9 clause is payable instead to the Compensation Fund under this 10 Act. 11 (3) Contributions made to the Compensation Fund under the 12 repealed Act are taken to have been made to the Compensation 13 Fund under this Act. 14 9 Statutory Interest Account 15 (1) The Statutory Interest Account under this Act is a continuation 16 of the Statutory Interest Account under the repealed Act. 17 (2) Any amount payable to the Statutory Interest Account under 18 the repealed Act immediately before the commencement of this 19 clause is payable instead to the Statutory Interest Account 20 under this Act. 21 (3) Contributions made to the Statutory Interest Account under the 22 repealed Act are taken to have been made to the Statutory 23 Interest Account under this Act. 24 10 Trust account rates 25 A trust account rate determined for an authorised deposit-taking 26 institution and in force under section 36AA of the repealed Act 27 immediately before its repeal is taken to have been determined 28 under section 85 of this Act in respect of that institution until 29 a different rate is determined for that institution under that 30 section. 31 Page 136

Property, Stock and Business Agents Bill 2001 Savings and transitional provisions Schedule 1 11 Approval of business name 1 The Director-General is taken to have approved of a licensee 2 carrying on, or advertising or holding out that the licensee 3 carries on, business as a licensee under a name for the 4 purposes of this Act if, immediately before the commencement 5 of this clause, the licensee carried on business as a licensee 6 under that name in compliance with section 43A of the 7 repealed Act. 8 12 Licences cancelled under repealed Act 9 A reference in this Act to a licence cancelled under this Act 10 includes a reference to a licence cancelled under the repealed 11 Act. 12 13 Receivers 13 The repealed Act continues to apply to and in respect of a 14 receiver whose appointment under the repealed Act is in force 15 immediately before the commencement of this clause as if the 16 repealed Act had not been repealed. 17 14 Act extends to acts and omissions before commencement 18 Unless the context otherwise indicates or requires, a provision 19 of this Act extends to any act or omission occurring before the 20 commencement of the provision. 21 15 Continuity of things done before commencement 22 Anything done by the Director-General or a licensee under or 23 for the purposes of a provision of the repealed Act is, to the 24 extent that the thing done has effect immediately before the 25 repeal of the provision, taken to have been done under or for 26 the purposes of the corresponding provision of this Act. 27 16 Disclosure of information 28 For the purposes of section 215 (Disclosure of information) of 29 this Act, information obtained in connection with the 30 administration or execution of the repealed Act is taken to have 31 been obtained in connection with the administration or 32 execution of this Act. 33 Page 137

Property, Stock and Business Agents Bill 2001 Schedule 2 Consequential amendments Schedule 2 Consequential amendments 1 (Section 223) 2 2.1 Community Land Management Act 1989 No 202 3 Section 3 Definitions 4 Omit "Property, Stock and Business Agents Act 1941" from the definition 5 of managing agent in section 3 (1). 6 Insert instead "Property, Stock and Business Agents Act 2001". 7 2.2 Conveyancers Licensing Act 1995 No 57 8 [1] Section 5 Disqualified persons 9 Omit section 5 (1) (h). Insert instead: 10 (h) is a disqualified person under the Property, Stock and 11 Business Agents Act 2001. 12 [2] Section 5 (2) (b) 13 Omit "Property, Stock and Business Agents Act 1941". 14 Insert instead "Property, Stock and Business Agents Act 2001". 15 [3] Section 19 Multidisciplinary partnerships 16 Omit "Property, Stock and Business Agents Act 1941" from section 19 (3). 17 Insert instead "Property, Stock and Business Agents Act 2001". 18 [4] Section 22 Sharing staff of legal practitioners and real estate and other 19 agents 20 Omit "Property, Stock and Business Agents Act 1941" from section 22 (1). 21 Insert instead "Property, Stock and Business Agents Act 2001". 22 Page 138

Property, Stock and Business Agents Bill 2001 Consequential amendments Schedule 2 [5] Section 29 1 Omit the section. Insert instead: 2 29 Bankers to pay interest to Statutory Interest Account 3 (1) Sections 85 and 86 of the Property, Stock and Business Agents 4 Act 2001 apply in respect of all money held in a general trust 5 account under this Division as if: 6 (a) the trust account were a trust account opened and kept 7 under section 81 of that Act, and 8 (b) the licensee who opened and keeps the trust account 9 were a licensee under that Act. 10 (2) A licensee must, when opening a trust account at an authorised 11 deposit-taking institution under this Division, ensure that the 12 authorised deposit-taking institution is notified that the trust 13 account is, for the purposes of sections 85 and 86 of that Act, 14 to be regarded as a trust account required by that Act. Such a 15 notification is, for the purposes of those sections, to be regarded 16 as a notification that the trust account is required by that Act. 17 [6] Section 37 Definition 18 Omit "Property, Stock and Business Agents Act 1941" from the definition 19 of PSBA Act in section 37. 20 Insert instead "Property, Stock and Business Agents Act 2001". 21 [7] Section 38 Claims can be made against Compensation Fund 22 Omit "Part 6 (Compensation Fund) of the PSBA Act" from section 38 (1). 23 Insert instead "Part 11 of the PSBA Act". 24 [8] Section 38 (3) 25 Omit "Section 64E (4) of the PSBA Act". 26 Insert instead "Section 179 (4) of the PSBA Act". 27 [9] Section 39 Contributions by licensees 28 Omit "section 64D or 64E of the PSBA Act" from section 39. 29 Insert instead "section 178 or 179 of the PSBA Act". 30 Page 139

Property, Stock and Business Agents Bill 2001 Schedule 2 Consequential amendments [10] Section 43 Appointment of manager 1 Omit "a determination by the Director-General under Part 6 of the Property, 2 Stock and Business Agents Act 1941" from section 43 (1) (c). 3 Insert instead "a determination by the Director-General under Part 11 of the 4 Property, Stock and Business Agents Act 2001". 5 [11] Section 55 Supreme Court may appoint receiver 6 Omit "Property, Stock and Business Agents Act 1941" from section 55 7 (2) (c). 8 Insert instead "Property, Stock and Business Agents Act 2001". 9 2.3 Fair Trading Act 1987 No 68 10 [1] Section 8 Delegation by Director-General 11 Omit "Property, Stock and Business Agents Act 1941" from section 8 12 (1) (f). 13 Insert instead "Property, Stock and Business Agents Act 2001". 14 [2] Section 25I Functions 15 Omit "Property, Stock and Business Agents Act 1941" from paragraph (a) 16 of the definition of property services industry in section 25I (2). 17 Insert instead "Property, Stock and Business Agents Act 2001". 18 2.4 Fines Act 1996 No 99 19 Schedule 1 Statutory provisions under which penalty notices 20 issued 21 Omit "Property, Stock and Business Agents Act 1941, section 86C" from 22 Schedule 1. 23 Insert instead "Property, Stock and Business Agents Act 2001, section 212". 24 Page 140

Property, Stock and Business Agents Bill 2001 Consequential amendments Schedule 2 2.5 Landlord and Tenant (Rental Bonds) Act 1977 No 44 1 Section 20 Rental Bond Interest Account 2 Omit "Property, Stock and Business Agents Act 1941" from section 3 20 (2A). 4 Insert instead "Property, Stock and Business Agents Act 2001". 5 2.6 Pawnbrokers and Second-hand Dealers Act 1996 No 13 6 Section 4 Restrictions on operation of this Act 7 Omit "Property, Stock and Business Agents Act 1941" from section 4 (1). 8 Insert instead "Property, Stock and Business Agents Act 2001". 9 2.7 Retirement Villages Act 1999 No 81 10 [1] Section 23 Deposits to be kept in trust 11 Omit "Property, Stock and Business Agents Act 1941" from section 23 12 (3) (b). 13 Insert instead "Property, Stock and Business Agents Act 2001". 14 [2] Section 168 Sale of premises 15 Omit "Property, Stock and Business Agents Act 1941" from the note to 16 section 168 (1). 17 Insert instead "Property, Stock and Business Agents Act 2001". 18 [3] Section 202 Costs of administration 19 Omit "Property, Stock and Business Agents Act 1941, in accordance with 20 section 63E of that Act" from section 202 (b). 21 Insert instead "Property, Stock and Business Agents Act 2001, in 22 accordance with section 200 of that Act". 23 Page 141

Property, Stock and Business Agents Bill 2001 Schedule 2 Consequential amendments 2.8 Strata Schemes Management Act 1996 No 138 1 [1] Chapter 2, Part 4 2 Omit "Property, Stock and Business Agents Act 1941" from the introductory 3 note under the heading to Part 4 of Chapter 2. 4 Insert instead "Property, Stock and Business Agents Act 2001". 5 [2] Section 26 What is a strata managing agent? 6 Omit "Property, Stock and Business Agents Act 1941" from section 26. 7 Insert instead "Property, Stock and Business Agents Act 2001". 8 [3] Section 26 9 Omit "Property, Stock and Business Agents Act 1941" from the note to 10 section 26. 11 Insert instead "Property, Stock and Business Agents Act 2001". 12 [4] Section 33 Information may be required relating to strata managing 13 agent's trust account 14 Omit "section 36 of the Property, Stock and Business Agents Act 1941" 15 from section 33. 16 Insert instead "the Property, Stock and Business Agents Act 2001". 17 [5] Section 38 Who is responsible for providing information if a strata 18 managing agent ceases to hold a licence or dies? 19 Omit "Property, Stock and Business Agents Act 1941" from section 38. 20 Insert instead "Property, Stock and Business Agents Act 2001". 21 [6] Section 38 (a) 22 Omit "section 36 (6) of". 23 [7] Section 38 (b) 24 Omit "section 38 (2) of". 25 Page 142

Property, Stock and Business Agents Bill 2001 Consequential amendments Schedule 2 [8] Section 40 Certain provisions of other Acts requiring agents to provide 1 information not to apply to affairs of owners corporation 2 Omit "section 38A (3), (4), (5), (6) and (7) of the Property, Stock and 3 Business Agents Act 1941" from section 40 and from the note to that 4 section wherever occurring. 5 Insert instead "section 98 of the Property, Stock and Business Agents 6 Act 2001". 7 [9] Section 105 Owners corporation may require certain persons to 8 produce records, accounts and property of the owners corporation 9 Omit "section 38 of the Property, Stock and Business Agents Act 1941" 10 from section 105 (4). 11 Insert instead "the Property, Stock and Business Agents Act 2001". 12 [10] Section 105 13 Omit "Section 38 of the Property, Stock and Business Agents Act 1941" 14 from the note to section 105. 15 Insert instead "The Property, Stock and Business Agents Act 2001". 16 [11] Section 162 Order appointing strata managing agent to exercise certain 17 functions 18 Omit "Property, Stock and Business Agents Act 1941" from section 162 19 (4) (a). 20 Insert instead "Property, Stock and Business Agents Act 2001". 21 Page 143

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