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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Property, Stock and Business Agents
Bill 2002
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Regulations may exempt persons and activities from Act 9
5 Exemptions from Act 11
6 Notes 12
Part 2 Licences and certificates of registration
Division 1 Requirement for licence or certificate of
registration
7 Kinds of licences and certificates of registration 13
8 Agents required to be licensed 13
9 Corporations require corporation licence 14
Property, Stock and Business Agents Bill 2002
Contents
Page
10 Salespersons and managers require certificate of
registration 15
11 Registered salespersons and managers required to be
employed and supervised by licensee 15
12 Production of licence or certificate of registration 16
13 Lending of licence or certificate of registration prohibited 16
Division 2 Eligibility, qualifications and disqualification
14 Eligibility for licence or certificate of registration 16
15 Qualifications for licence or certificate of registration 17
16 Disqualified persons 18
Division 3 Application and issue procedure
17 Application for licence or certificate of registration 20
18 Consideration of applications 21
19 Determination of applications 21
20 Conditions--general 21
21 Special condition requiring auctioneers to be accredited 22
22 Special condition requiring professional indemnity
insurance 22
23 Special conditions for on-site residential property managers
and registered managers 23
24 Issue of licence or certificate of registration 23
25 Duration 24
26 Reissue and restoration of a licence or certificate of
registration 24
27 Review by ADT 25
Part 3 General conduct of licensees and registered persons
Division 1 Place and name of business
28 Registered office and address 26
29 Display of name at registered office 26
30 Business names 27
Division 2 Business practices and supervision
31 Each place of business to be in charge of licensee 28
32 Duty of licensee and person in charge to properly supervise
business 29
33 Licensee not to share commission with certain persons 30
34 Non-commercial subagency agreements to be in writing 30
Contents page 2
Property, Stock and Business Agents Bill 2002
Contents
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35 Franchising agreements 31
36 Review of commission and fees 32
37 Rules of conduct for licensee's business 33
38 Undertakings by licensees and registered persons 33
39 Duty of licensee to notify defalcation 33
40 Industry association to report defalcation 34
Division 3 Employees
41 Liability of licensee for acts of employees 34
42 Licensee to keep records of certain employees 34
43 Duty of licensee not to employ certain persons 34
44 Duty of licensee to notify disqualification of employee 35
45 Employees required to notify disqualification 35
Division 4 Conflicts of interest
46 Financial and investment advice by real estate agents 35
47 Duty of disclosure to client and prospective buyer of land 36
48 Duty not to act for both buyer and seller of land 37
49 Restrictions on licensee obtaining beneficial interest in
property 37
Division 5 Advertisements and representations
50 Advertisements to include information about licensee 39
51 Publishing false or misleading advertisements 40
52 Misrepresentation by licensee or registered person 41
53 Damages for misrepresentation or concealment 42
Part 4 Agency agreements
Division 1 Requirements for agency agreements
54 Definitions 43
55 No entitlement to commission or expenses without agency
agreement 43
56 Approved guide to be provided before agency agreement
for residential property signed 44
57 Agency agreement must disclose rebates, discounts and
commissions 44
58 Prohibition against listing residential or rural land subject to
sole or exclusive agency 45
Contents page 3
Property, Stock and Business Agents Bill 2002
Contents
Page
Division 2 Cooling-off period for residential or rural
agency agreements
59 Cooling-off period for residential or rural agency
agreements 46
60 Agency agreement can be rescinded during cooling-off
period 47
61 Effect of rescission 47
62 No contracting out 47
Part 5 Residential property and rural land sales
Division 1 Contract for sale of residential property
63 Proposed contract for sale of residential property 48
64 Contracts for sale of residential property 49
65 Procedure following rescission 50
Division 2 Bidding at auction of residential property or
rural land
66 Restrictions on bidding by or on behalf of seller or
auctioneer 51
67 Bids may only be taken from registered bidders 51
68 Bidders Record 52
69 Details to be established by proof of identity 53
70 Confidentiality of Bidders Record 54
71 Approved consumer education guide for bidders at
auctions 54
Division 3 Representations as to selling price of
residential property
72 False representation to seller or prospective seller 55
73 False representation to prospective buyer 55
74 Requirement to substantiate selling price
estimates--residential property 55
75 Division extends to estimates of price range 56
76 Extended meaning of "estimate" 56
Part 6 Auctions--general
77 Prescribed auction conditions 57
78 Collusive practices at auction sales 57
79 False entry in auction record 58
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Property, Stock and Business Agents Bill 2002
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80 Misrepresentation as to quality etc 59
81 Restrictions on bidding by or on behalf of seller or
auctioneer of livestock 59
82 Contracting out of prescribed terms and conditions of
auction sales 60
83 Successful bidder at auction to supply information 60
84 Livestock auctions--"comeback" prohibited 60
Part 7 Trust accounts
Division 1 Preliminary
85 Interpretation 62
Division 2 Payment of trust money into trust account
86 Trust money to be paid into trust account 62
87 Approval of authorised deposit-taking institutions 63
88 Trust money not available to pay licensee's debts 63
89 Licensee to notify trust account becoming overdrawn 64
90 Interest earned on trust accounts to be paid to Statutory
Interest Account 64
Division 3 Responsibilities of authorised deposit-taking
financial institutions
91 Monthly returns by authorised deposit-taking institutions 65
92 Overdrawn trust accounts 67
93 Dishonoured cheques 67
94 Annual certification by auditor 67
95 Protection of authorised deposit-taking institutions from
liability 68
Division 4 Unclaimed trust money
96 Unclaimed trust money held by licensee 68
97 Unclaimed trust money held by former licensee or personal
representative 69
98 Disposal of unclaimed money in trust accounts 69
99 Repayment of unclaimed trust money 71
Contents page 5
Property, Stock and Business Agents Bill 2002
Contents
Page
Division 5 Information about trust accounts or
transactions
100 Director-General may require information 71
101 Person concerned in transaction may request itemised
account 72
102 Offence 72
Part 8 Records
Division 1 Keeping and inspection of records
103 Licensee's records 73
104 Licensee to make and keep certain records 73
105 Inspection of licensee's records 74
106 Inspection of records of financial institutions 75
107 Power to require production of licensee's records 75
108 Power to take possession of records to be used as
evidence 76
109 Additional requirements for managing agents 76
110 Offence 77
Division 2 Audit of licensee's records
111 Requirement for audit 77
112 Audit period 78
113 Statutory declaration required when no trust money held or
received 78
114 Audit obligations of partners 79
115 Qualifications of auditors 79
116 Duties of auditors 79
Division 3 Freezing of accounts
117 Definitions 80
118 Director-General may freeze licensee's accounts in
particular cases 80
119 Financial institution must comply with direction 81
120 Account not to be operated unless Director-General allows 82
121 Director-General may operate account 82
122 Withdrawal of direction 82
Contents page 6
Property, Stock and Business Agents Bill 2002
Contents
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Part 9 Management and receivership
Division 1 Preliminary
123 Definitions 83
124 Associates of a licensee 84
125 Failure to account 85
Division 2 Management
126 Appointment of manager 85
127 Qualifications for appointment as manager 86
128 Powers of manager 86
129 Management continues under receivership 87
130 Acts of manager taken to be acts of licensee 87
131 Manager may be reimbursed for damages 87
132 Payment of expenses of management 88
133 Manager to report to Director-General 88
134 Trust money 88
135 Office accounts 89
136 Termination of management 89
137 Obstruction of managers 89
Division 3 Receivership
138 Supreme Court may appoint receiver 89
139 Receivership may extend to property of licensee's
associate 90
140 Court to be closed 90
141 Order to be served 91
142 Receiver may take possession of property 91
143 Information about receivable property 92
144 Stop order on account 93
145 Improper dealing with property 93
146 Recovery of compensation for disposal of receivable
property 94
147 Receiver may give certificate 95
148 Receiver taken to be beneficially entitled to property 95
149 Receiver may deal with property 96
150 Other powers of receiver 96
151 Notice to claim receivable property 96
152 Lien on receivable property 97
153 Examination by receiver 98
154 Property not dealt with by receiver 98
155 Investment of money by receiver 99
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Property, Stock and Business Agents Bill 2002
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156 Receiver may be reimbursed for damages 99
157 Payment of expenses of receivership 99
158 Supreme Court may review expenses of receivership 100
159 Receivable property not to be attached 100
160 Applications for directions by receiver, licensee etc 100
161 Supreme Court may give general directions to receiver 100
162 Receiver to report to Supreme Court and Director-General 101
163 Termination of appointment of receiver 101
164 Obstruction of receivers 102
Part 10 Compensation Fund
Division 1 Establishment and management
165 Compensation Fund 103
166 Money payable to Compensation Fund 103
167 Application of money in Compensation Fund 103
Division 2 Contributions and levies
168 Contributions 104
169 Levies 104
Division 3 Claims
170 Definitions 105
171 Meaning of "failure to account" 105
172 Division applies when person reasonably believed to be a
licensee 106
173 Claims against Compensation Fund 106
174 Legal proceedings 107
175 Limits on amounts recoverable 108
176 Advertisements 108
177 Subrogation 109
178 Recovery of payments from directors 109
179 Production of documents 110
180 Satisfaction of claims and judgments 110
Division 4 Examination of accounts of licensees and
former licensees
181 Definitions 110
182 Appointment of accounts examiner to examine licensee's
accounts 111
183 Accounts examiner to report on accounts 111
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Property, Stock and Business Agents Bill 2002
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184 Powers of accounts examiner 111
185 Confidentiality 112
186 Former licensees 113
Part 11 Property Services Statutory Interest Account
187 Statutory Interest Account 114
188 Money payable to Statutory Interest Account 114
189 Application of money in Statutory Interest Account 114
190 Application of money for purposes of certain Acts 115
Part 12 Complaints and disciplinary action
191 Grounds for disciplinary action 117
192 Disciplinary action 118
193 Decision to take no further action 119
194 Complaints 119
195 Show cause notice 119
196 Power to suspend licence or certificate of registration when
show cause notice served 120
197 Inquiries and investigation 120
198 Taking of disciplinary action 120
199 Recovery of monetary penalty 121
200 Review of disciplinary action by ADT 121
201 Warning notices 121
202 Failure to comply with disqualification from involvement in
business 122
203 Return of suspended or cancelled licence 122
Part 13 Enforcement
204 Authorised officers 123
205 Powers of entry, inspection etc 123
206 Power of authorised officer to obtain information, records
and evidence 124
207 Obstruction etc of authorised officers 125
208 Taking possession of records to be used as evidence 125
209 Search warrants 126
210 Injunctions 126
Part 14 Offences and proceedings
Division 1 Offences
211 Fraudulent conversion and false accounts of money
received by licensee or registered person 127
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Property, Stock and Business Agents Bill 2002
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212 Fraudulent accounts for expenses, commission and other
charges 128
213 Offences by persons other than principal offenders 128
214 Operation of Crimes Act not affected 128
Division 2 Proceedings
215 Proceedings for offences 128
216 Penalty notices 129
217 Time for laying information 130
218 Offences by corporations 130
Part 15 Administration
219 Disclosure of information 131
220 Register 132
221 Certificate evidence 133
222 Delegation 133
Part 16 Miscellaneous
223 Fair Trading Act not affected 134
224 Exclusion of personal liability 134
225 Service of notices 134
226 Repeals 135
227 Savings and transitional provisions 135
228 Consequential amendments of Acts 135
229 Displacement of Corporations legislation 135
230 Regulations 135
231 Review of Act 136
Schedules
1 Savings and transitional provisions 137
2 Consequential amendments 142
Contents page 10
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2002
New South Wales
Property, Stock and Business Agents
Bill 2002
Act No , 2002
An Act to provide for the regulation of property, stock and business agents; to
repeal the Property, Stock and Business Agents Act 1941; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Property, Stock and Business Agents Bill 2002
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Property, Stock and Business Agents Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Definitions
(1) In this Act:
agency agreement means an agreement pursuant to which a licensee
performs or agrees to perform services in the capacity of a licensee.
agent means:
(a) a real estate agent, or
(b) a stock and station agent, or
(c) a business agent, or
(d) a strata managing agent, or
(e) a community managing agent, or
(f) an on-site residential property manager.
auction means the sale of property by any means (including the
Internet) whereby:
(a) the highest, the lowest, or any bidder is the purchaser, or the
first person who claims the property submitted for sale at a
certain price named by the person acting as auctioneer is the
purchaser, or
(b) there is a competition for the purchase of the property in any
way commonly known and understood to be by auction.
auctioneer means any person:
(a) who, in the course of trade or business and at an auction (or a
proposed auction), acts as an auctioneer or sells for reward
(whether monetary or otherwise) any land or any livestock, or
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Property, Stock and Business Agents Bill 2002 Clause 3
Preliminary Part 1
(b) who sells or offers for sale, or who attempts to sell, any land or
any livestock by way of auction, or
(c) who engages in any other activity that is prescribed for the
purposes of this definition.
authorised officer has the meaning given in Part 13 (Enforcement).
business agent means any person (whether or not the person carries on
any other business) who for reward (whether monetary or otherwise)
carries on business as an agent for exercising any of the following
functions:
(a) selling, buying or exchanging or otherwise dealing with or
disposing of businesses or professional practices or any share
or interest in or concerning or the goodwill of or any stocks
connected with businesses or professional practices,
(b) negotiating for the sale, purchase or exchange or any other
dealing with or disposition of businesses or professional
practices or any share or interest in or concerning or the
goodwill of or any stocks connected with businesses or
professional practices,
(c) any other function that is prescribed by the regulations for the
purposes of this definition.
business day means a day other than a Saturday, Sunday, public
holiday or bank holiday in New South Wales.
business salesperson means a person (other than the holder of a
business agent's licence) who, as an employee of a business agent or
a corporation that employs a business agent:
(a) exercises any function of a business agent, or
(b) engages in any other activity that is prescribed by the
regulations for the purposes of this definition.
certificate of registration means a certificate of registration under this
Act.
community managing agent means a person who is engaged or
appointed, for monetary or other reward, to exercise functions of an
association constituted for a scheme under the Community Land
Development Act 1989, or any other function that is prescribed by the
regulations for the purposes of this definition, but does not include:
(a) the proprietor of a lot within the scheme, or
(b) the secretary or treasurer of the association, or
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Clause 3 Property, Stock and Business Agents Bill 2002
Part 1 Preliminary
(c) a person authorised by the management statement for the
scheme to exercise the functions of the secretary or treasurer of
the association, or
(d) a person who maintains or repairs any property that the
association is required to maintain and keep in repair.
Compensation Fund or Fund means the Property Services
Compensation Fund established and maintained under this Act.
Corporations Act means the Corporations Act 2001 of the
Commonwealth.
Department means the Department of Fair Trading.
Director-General means the Director-General of the Department.
disqualified person has the meaning given by section 16.
employee includes any person employed whether on salary, wages,
bonus, commission, fees, allowance or other remuneration and
includes a director or member of the governing body of a corporation.
former licensee means a person who has been but has ceased to be a
licensee.
individual means a natural person and does not include a corporation.
land includes:
(a) a lot within the meaning of the Strata Schemes (Freehold
Development) Act 1973 or the Community Land Development
Act 1989 and a leasehold interest in a lot within the meaning of
the Strata Schemes (Leasehold Development) Act 1986, and
(b) shares that, under a company title scheme, entitle their holder
to the possession of premises.
licence means a licence under this Act.
licensee means the holder of a licence under this Act.
licensee's records has the meaning given in Part 8 (Records).
livestock includes horses, cattle, asses, mules, sheep, swine, camels,
goats, alpacas, ostriches, emus and such other animals as may be
prescribed by the regulations.
livestock transaction means the purchase, sale or other disposal of
livestock, whether or not an auction is involved.
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Property, Stock and Business Agents Bill 2002 Clause 3
Preliminary Part 1
money includes an instrument for the payment of money in any case
where the instrument may be paid into a bank or other authorised
deposit-taking institution.
money received for or on behalf of any person includes money held
for or on behalf of any person, whether originally received for or on
the person's behalf or not.
on-site residential property manager means a person (whether or not
the person carries on any other business) who, for reward (whether
monetary or otherwise):
(a) carries on business as an agent for giving possession of
residential premises under a lease, licence or other contract, or
(b) carries on business as an agent for collecting bonds, deposits,
rents, fees or other charges in connection with any such lease,
licence or other contract, or
(c) carries on any other business that is prescribed by the
regulations for the purposes of this definition.
Note. It is a condition of an on-site residential property manager's licence that the
licensee may act as an on-site residential property manager only in respect of
premises at which the licensee's principal place of residence is situated and only
if the licensee owns or has a prescribed interest in that principal place of residence.
principal place of business means, in relation to a licensee carrying on
business at more than one place, the place of business specified in the
application for the licence as the licensee's principal place of business.
real estate agent means a person (whether or not the person carries on
any other business) who, for reward (whether monetary or otherwise),
carries on business as an auctioneer of land or as an agent:
(a) for a real estate transaction, or
(b) for inducing or attempting to induce or negotiating with a view
to inducing any person to enter into, or to make or accept an
offer to enter into, a real estate transaction or a contract for a
real estate transaction, or
(c) for the introduction, or arranging for the introduction, of a
prospective purchaser, lessee or licensee of land to another
licensed agent or to the owner, or the agent of the owner, of
land, or
(d) collecting rents payable in respect of any lease of land and
otherwise providing property management services in respect
of the leasing of any land, or
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Clause 3 Property, Stock and Business Agents Bill 2002
Part 1 Preliminary
(e) for any other activity in connection with land that is prescribed
by the regulations for the purposes of this definition.
but does not include a person who carries on business as an auctioneer
or agent in respect of any parcel of rural land unless the regulations
otherwise provide.
Note. This definition is not limited to the selling of land and extends to an agent
acting on behalf of the buyer of land (a buyer's agent).
As noted in section 168 of the Retirement Villages Act 1999, a selling agent acting
on the sale of residential premises in a retirement village must be licensed as a real
estate agent under this Act.
real estate salesperson means a person (other than the holder of a real
estate agent's licence) who, as an employee of a real estate agent or a
corporation that carries on the business of a real estate agent:
(a) exercises any of the functions of a real estate agent, or
(b) engages in any other activity that is prescribed by the
regulations for the purposes of this definition.
real estate transaction means the purchase, sale, exchange, lease,
assignment or other disposal of land, whether or not an auction is
involved.
records includes books, accounts and other documents.
registered community manager means a person (other than a
community managing agent holding a strata managing agent's licence)
who, as an employee of a community managing agent or a corporation
that carries on the business of a community managing agent:
(a) exercises any of the functions of a community managing agent,
or
(b) engages in any other activity that is prescribed by the
regulations for the purposes of this definition.
registered manager means a registered strata manager, registered
community manager or registered on-site residential property manager.
registered on-site residential property manager means a person (other
than the holder of an on-site residential property manager's licence or
the holder of a real estate agent's licence) who, as an employee of an
on-site residential property manager or a corporation that carries on the
business of an on-site residential property manager:
(a) exercises any of the functions of an on-site residential property
manager, or
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Property, Stock and Business Agents Bill 2002 Clause 3
Preliminary Part 1
(b) engages in any other activity that is prescribed by the
regulations for the purposes of this definition.
registered person means the holder of a certificate of registration under
this Act.
registered strata manager means a person (other than the holder of a
strata managing agent's licence) who, as an employee of a strata
managing agent or a corporation that carries on the business of a strata
managing agent:
(a) exercises any of the functions of a strata managing agent, or
(b) engages in any other activity that is prescribed by the
regulations for the purposes of this definition.
residential property has the same meaning as in Division 8 of Part 4
of the Conveyancing Act 1919.
rural land means land that is used or apparently intended to be used
for gain or profit for grazing of livestock, dairying, poultry farming,
viticulture, orcharding, beekeeping, horticulture, the growing of crops
of any kind, vegetable growing or any other purpose declared by the
regulations to be a rural purpose.
Statutory Interest Account means the Property Services Statutory
Interest Account referred to in Part 11.
stock and station agent means a person (whether or not the person
carries on any other business) who, for reward (whether monetary or
otherwise), carries on business as an auctioneer of rural land or
livestock or as an agent for:
(a) doing (where the land concerned consists of rural land) any one
or more of the things referred to in paragraphs (a)(d) of the
definition of real estate agent, or
(b) a livestock transaction, or
(c) inducing or attempting to induce or negotiating with a view to
inducing any person to enter into, or to make or accept an offer
to enter into, a livestock transaction or a contract for a livestock
transaction, or
(d) providing agistment for livestock or collecting of fees for the
agistment of livestock, or
(e) any other activity that is prescribed by the regulations for the
purposes of this definition.
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Clause 3 Property, Stock and Business Agents Bill 2002
Part 1 Preliminary
stock and station salesperson means a person (other than the holder
of a stock and station agent's licence) who, as an employee of a stock
and station agent or a corporation that carries on the business of a stock
and station agent:
(a) exercises any of the functions of a stock and station agent, or
(b) engages in any other activity that is prescribed by the
regulations for the purposes of this definition.
strata managing agent means a person (whether or not such person
carries on any other business) who, for reward (whether monetary or
otherwise), exercises any function of an owners corporation within the
meaning of the Strata Schemes Management Act 1996 or any other
function that is prescribed by the regulations for the purposes of this
definition, not being:
(a) a person who:
(i) is the owner of a lot to which the strata scheme for
which the owners corporation is constituted relates, or
(ii) is the lessee of a lot to which the leasehold strata
scheme for which the owners corporation is constituted
relates, or
(iii) is the secretary or treasurer of the executive committee
of the owners corporation,
and who exercises or performs only functions of the owners
corporation required, by the by-laws in force in respect of the
strata scheme or leasehold strata scheme for which the owners
corporation is constituted, to be exercised or performed by the
secretary or treasurer of that executive committee or of the
owners corporation, or
(b) a person who maintains or repairs any property for the
maintenance or repair of which the owners corporation is
responsible.
trust account means a trust account required to be kept under this Act.
(2) Where a person carries on business as a business agent and also carries
on business as an agent for the collection of instalments of principal or
interest payable under bills of sale given in respect of businesses or
professional practices or under contracts for the sale on terms of
businesses or professional practices, a reference in this Act to any such
person acting as, or carrying on the business of, a business agent
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Property, Stock and Business Agents Bill 2002 Clause 3
Preliminary Part 1
includes a reference to that person carrying on business as an agent for
the collection of those instalments.
(3) Where a person carries on business as a real estate agent and also
carries on:
(a) business as an agent for the collection of instalments of
principal or interest payable under mortgages of land or under
contracts for the sale on terms of land, or
(b) business as an agent for the collection of amounts payable in
relation to any premises to a company by a person who is the
holder of shares in the company and who, by reason of the
person's holding those shares, is entitled to possession of those
premises, or
(c) the business of arranging for the erection of buildings for or on
behalf of other persons,
a reference in this Act to any such person acting as, or carrying on the
business of, a real estate agent includes a reference to that person
carrying on business as an agent for the collection of those instalments
or amounts or to that person carrying on the business of so arranging
for the erection of buildings.
(4) Where a person carries on business as a stock and station agent and
also carries on business as an agent for the collection of instalments of
principal or interest payable under mortgages of rural land or under
contracts for the sale on terms of any such land, a reference in this Act
to any such person acting as, or carrying on the business of, a stock
and station agent includes a reference to that person carrying on
business as an agent for the collection of those instalments.
4 Regulations may exempt persons and activities from Act
(1) The regulations may make provision for or with respect to exempting
a specified person, or a person who is a member of a specified class of
persons, from the operation of all or specified provisions of this Act in
respect of any act or omission by the person in the person's capacity
as agent:
(a) for a specified class of persons, or
(b) in respect of a specified class of activities, or
(c) in respect of activities involving a specified class of property.
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Clause 4 Property, Stock and Business Agents Bill 2002
Part 1 Preliminary
(2) The regulations may make provision that is necessary or convenient in
connection with an exemption under subsection (1), including
provisions for or with respect to any of the following:
(a) imposing liabilities on a person (not necessarily the agent
concerned) in respect of pecuniary loss suffered by a person
because of a failure by the agent to account for money or other
valuable property entrusted to the agent or an employee of the
agent in the course of activities to which an exemption under
this section applies,
(b) requiring the disclosure of information to the Director-General
in connection with the activities of a person pursuant to an
exemption under this section,
(c) requiring the obtaining of insurance, including professional
indemnity insurance and fidelity guarantee insurance, in
connection with the activities of a person pursuant to an
exemption under this section,
(d) requirements as to the holding of money on behalf of a party to
a transaction in connection with which a person acts as agent
pursuant to an exemption under this section,
(e) disclosures to be made by a person acting pursuant to an
exemption under this section,
(f) regulating the payment of commission and other remuneration
in connection with the activities of a person pursuant to an
exemption under this section,
(g) the placing of limitations on the authority of a person to act as
agent pursuant to an exemption under this section,
(h) the auditing of compliance with conditions and requirements
imposed by the regulations under this section,
(i) modifying the operation of any provision of this Act in its
application to the activities of a person pursuant to an
exemption under this section,
(j) the payment of fees to the Director-General in connection with
an exemption under this section.
(3) The regulations under this section may also create offences punishable
by a penalty not exceeding 100 penalty units for any contravention of
the regulations under this section or conditions or requirements
imposed by those regulations.
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Property, Stock and Business Agents Bill 2002 Clause 4
Preliminary Part 1
(4) Nothing in this section affects the generality of section 230 (2) (g).
5 Exemptions from Act
(1) This Act does not require a licence to be held by, and does not require
a certificate of registration to be held by any person in their capacity as
employee of, any of the following:
(a) a Minister of the Crown whether a Minister of the State of New
South Wales or of the Commonwealth,
(b) any Government Department of the State of New South Wales
or the Commonwealth (including any statutory corporation
representing the Crown),
(c) a council within the meaning of the Local Government
Act 1993,
(d) any public authority prescribed by the regulations,
(e) any officer or employee of the Crown or of any such Minister,
department, corporation, council or authority in the exercise of
his or her functions as such officer or employee,
(f) the Public Trustee, the Protective Commissioner or any
executor, administrator, trustee, liquidator, official receiver,
trustee in bankruptcy of a bankrupt's estate, trustee under a
composition or scheme of arrangement or under a deed of
arrangement or under a deed of assignment, or manager of an
estate appointed under the Protected Estates Act 1983, in the
exercise of functions as such,
(g) any person for the purposes of any sale made of Crown lands
or other Crown property or for the purposes of any sale of any
property made by virtue of any writ or process issued out of any
Court or made in obedience to any process issued by any Court
or judge or justice for the recovery of any fine, penalty or
award, or under any rule, order or decree of any competent
Court or made pursuant to the Impounding Act 1993,
(h) a receiver appointed under this Act, in the exercise of the
receiver's functions under this Act,
(i) the New South Wales Land and Housing Corporation,
(j) the New South Wales Department of Housing,
(k) the Office of Community Housing of the Department of
Housing,
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Clause 5 Property, Stock and Business Agents Bill 2002
Part 1 Preliminary
(l) the Aboriginal Housing Office,
(m) an organisation for the time being registered with the Office of
Community Housing, or under Part 5 of the Aboriginal
Housing Act 1998,
(n) a person or organisation, or a person or organisation of a class,
prescribed by the regulations as not requiring a licence.
(2) This Act does not prevent any person for the time being entitled to
practise as a legal practitioner from exercising any function that, had
this Act not been enacted, the person might lawfully have exercised as
a legal practitioner.
(3) An exemption under subsection (1) (f) that allows a person to carry on
a business lawfully without a licence expires 3 months after the
management of the business vests in the person.
(4) This Act does not apply to a sale by auction made for the purposes of
or in the course of a fundraising appeal within the meaning of the
Charitable Fundraising Act 1991 if the appeal is made, and the
proceeds of the sale are applied, in accordance with that Act.
(5) This Act does not require a business agent or a business salesperson to
hold a business agent's licence or a certificate of registration under this
Act if:
(a) the person holds an Australian financial services licence under
the Corporations Act, or
(b) the person is an authorised representative of a financial services
licensee within the meaning of Chapter 7 of the Corporations
Act.
(6) This Act does not require a corporation to hold a corporation licence
in order to act as or carry on the business of (or advertise, notify or
state that the corporation acts as or carries on the business of or is
willing to act as or carry on the business of) a business agent if:
(a) the corporation holds an Australian financial services licence
under the Corporations Act, or
(b) the corporation is an authorised representative of a financial
services licensee within the meaning of Chapter 7 of the
Corporations Act.
6 Notes
Notes included in this Act do not form part of this Act.
Page 12
Property, Stock and Business Agents Bill 2002 Clause 7
Licences and certificates of registration Part 2
Requirement for licence or certificate of registration Division 1
Part 2 Licences and certificates of registration
Division 1 Requirement for licence or certificate of
registration
7 Kinds of licences and certificates of registration
There are the following kinds of licences and certificates of registration
under this Act:
(a) real estate agent's licence,
(b) stock and station agent's licence,
(c) business agent's licence,
(d) strata managing agent's licence,
(e) on-site residential property manager's licence,
(f) corporation licence,
(g) certificate of registration as a real estate salesperson, stock and
station salesperson, business salesperson or registered manager.
8 Agents required to be licensed
(1) A natural person must not act as or carry on the business of (or
advertise, notify or state that the person acts as or carries on the
business of or is willing to act as or carry on the business of):
(a) a real estate agent, unless the person is the holder of a real
estate agent's licence, or
(b) a stock and station agent, unless the person is the holder of a
stock and station agent's licence, or
(c) a business agent, unless the person is the holder of a business
agent's licence, or
(d) a strata managing agent or community managing agent, unless
the person is the holder of a strata managing agent's licence, or
(e) an on-site residential property manager, unless the person is the
holder of an on-site residential property manager's licence.
Maximum penalty: 100 penalty units.
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Clause 8 Property, Stock and Business Agents Bill 2002
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
tribunal to recover any commission, fee, gain or reward for any service
performed by the person:
(a) as a real estate agent, unless the person was the holder of a real
estate agent's licence, or employed the holder of such a licence,
at the time of performing the service, or
(b) as a stock and station agent, unless the person was the holder of
a stock and station agent's licence, or employed the holder of
such a licence, at the time of performing the service, or
(c) as a business agent, unless the person was the holder of a
business agent's licence, or employed the holder of such a
licence, at the time of performing the service, or
(d) as a strata managing agent or as a community managing agent,
unless the person was the holder of a strata managing agent's
licence, or employed the holder of such a licence, at the time of
performing the service, or
(e) as an on-site residential property manager, unless the person
was the holder of an on-site residential property manager's
licence or a real estate agent's licence, or employed the holder
of such a licence, at the time of performing the service.
(3) This section applies to a natural person whether or not the person is a
member of a partnership.
(4) The fact that a particular activity is an activity for which more than one
class of licence may be appropriate does not require the holding of
more than one class of licence so long as at least one of the licences
that is appropriate to the activity is held.
(5) For the purposes of this section, a person is not considered to carry on
a business merely because the person is a member of a partnership that
carries on that business.
Note. Subsection (5) makes it clear that "silent" partners are not required to be
licensed.
9 Corporations require corporation licence
(1) A corporation must not act as or carry on the business of (or advertise,
notify or state that the corporation acts as or carries on the business of
or is willing to act as or carry on the business of) an agent unless the
corporation holds a corporation licence.
Maximum penalty: 200 penalty units.
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Property, Stock and Business Agents Bill 2002 Clause 9
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
recover any commission, fee, gain or reward for any service performed
by the corporation as an agent unless the corporation was the holder of
a corporation licence at the time of performing the service.
10 Salespersons and managers require certificate of registration
(1) A person must not do any of the following things unless the person is
the holder of a certificate of registration:
(a) be or remain as a real estate salesperson, stock and station
salesperson, business salesperson or registered manager in the
employment of a person licensed (or required to be licensed)
under this Act,
(b) represent, whether expressly or impliedly, that the person is a
real estate salesperson, stock and station salesperson, business
salesperson or registered manager in the employment of a
person licensed (or required to be licensed) under this Act,
(c) act as or exercise any of the functions of a real estate
salesperson, stock and station salesperson, business salesperson
or registered manager.
Maximum penalty: 100 penalty units.
(2) An employed licensee is not required to hold both a certificate of
registration and a licence to allow the licensee lawfully to do anything
that, in the absence of this section, the licensee could lawfully do as the
holder of the licence.
11 Registered salespersons and managers required to be employed and
supervised by licensee
(1) The holder of a certificate of registration must not act as or exercise
any of the functions of a real estate salesperson, stock and station
salesperson, business salesperson or registered manager unless the
person does so as an employee of the holder of a licence under this
Act.
(2) The holder of a certificate of registration must not exercise any of the
functions of a real estate salesperson, stock and station salesperson,
business salesperson or registered manager unless he or she does so
under the supervision of a person who:
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Clause 11 Property, Stock and Business Agents Bill 2002
Part 2 Licences and certificates of registration
Division 1 Requirement for licence or certificate of registration
(a) is the licensee in charge of the place of business at which the
employee is employed, and
(b) is the holder of a licence that allows the licensee to exercise that
function without contravening this Act.
Maximum penalty: 50 penalty units.
12 Production of licence or certificate of registration
A licensee or registered person must on request at the premises on
which the licensee carries on business or exercises functions as a
licensee or registered person produce his or her licence or certificate of
registration to an authorised officer and permit the authorised officer
to inspect the licence or certificate of registration.
Maximum penalty: 20 penalty units.
13 Lending of licence or certificate of registration prohibited
(1) The holder of a licence or certificate of registration must not let out,
hire or lend the licence or certificate of registration to any other person
or permit any other person to use the licence or certificate of
registration.
Maximum penalty: 100 penalty units.
(2) A court that convicts a person for an offence under this section is to
order the cancellation of the licence or certificate of registration
concerned. The licence or certificate of registration is cancelled on the
making of the order.
Division 2 Eligibility, qualifications and disqualification
14 Eligibility for licence or certificate of registration
(1) A natural person is eligible to hold a licence only if the
Director-General is satisfied that the person:
(a) is at least 18 years of age, and
(b) is a fit and proper person to hold a licence and each person
with whom the person is in partnership in connection with the
business concerned is a fit and proper person to hold a licence,
and
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Property, Stock and Business Agents Bill 2002 Clause 14
Licences and certificates of registration Part 2
Eligibility, qualifications and disqualification Division 2
(c) has the qualifications required for the issue of the licence, and
(d) is not a disqualified person, and
(e) has paid such part of any contribution or levy payable under
Part 10 (Compensation Fund) as is due and payable on the
granting of the licence.
(2) A corporation is eligible to hold a corporation licence only if the
Director-General is satisfied that:
(a) the corporation is a fit and proper person to hold a licence, and
(b) each director of the corporation is a fit and proper person to
hold a licence, and
(c) no director or executive officer (within the meaning of the
Corporations Act) of the corporation is a disqualified person,
and
(d) at least one of the directors of the corporation holds a licence
that a natural person is required to hold to carry on the business
that the corporation carries on or proposes to carry on, and
(e) the corporation has paid such part of any contribution or levy
payable under Part 10 (Compensation Fund) as is due and
payable on the granting of the licence.
(3) A person is eligible to hold a certificate of registration only if the
Director-General is satisfied that the person:
(a) is an individual who is at least 16 years of age, and
(b) is a fit and proper person to hold a certificate of registration,
and
(c) has the qualifications required for the issue of a certificate of
registration of the class concerned, and
(d) is not a disqualified person.
15 Qualifications for licence or certificate of registration
(1) The qualifications required for the issue of a licence or certificate of
registration are such qualifications as the Minister may approve from
time to time by order published in the Gazette.
(2) Without limiting the Minister's power to approve qualifications, the
Minister may approve qualifications by reference to any one or more
of the following:
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Clause 15 Property, Stock and Business Agents Bill 2002
Part 2 Licences and certificates of registration
Division 2 Eligibility, qualifications and disqualification
(a) the completion of a course of study,
(b) the completion of a period of training in a particular activity,
(c) the attainment of a standard of competency in a particular
activity,
(d) satisfaction of professional development requirements.
(3) Qualifications may be approved for a limited range of activities
specified in the approval, so as to enable a person who has those
qualifications to be granted a licence or certificate of registration
subject to conditions that limit the person to exercising the functions
of licensee or certificate of registration holder in relation to that limited
range of activities only.
(4) A person does not have the qualifications required for the reissue or
restoration of a licence or certificate of registration (as provided by
section 26) if the person failed to comply with any condition of the
licence or certificate of registration that required the holder to
undertake professional development, continuing education or a course
of study, unless the Director-General otherwise determines in a
particular case.
16 Disqualified persons
(1) A person is a disqualified person for the purposes of this Act if the
person:
(a) has a conviction in New South Wales or elsewhere for an
offence involving dishonesty that was recorded in the last 10
years, unless the Director-General has determined under
subsection (2) that the offence should be ignored, or
(b) has a conviction that was recorded in the last 5 years for an
offence under section 13 (Lending of licence or certificate of
registration prohibited) of this Act or section 41 (Licensee not
to lend licence) of the Property, Stock and Business Agents
Act 1941, unless the Director-General has determined under
subsection (2) that the offence should be ignored, or
(c) is an undischarged bankrupt or is a director or person concerned
in the management of a corporation that is the subject of a
winding up order or for which a controller or administrator has
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Property, Stock and Business Agents Bill 2002 Clause 16
Licences and certificates of registration Part 2
Eligibility, qualifications and disqualification Division 2
been appointed, unless (in the case of an undischarged
bankrupt) the Director-General has certified that he or she is
satisfied that the person took all reasonable steps to avoid the
bankruptcy, or
(d) at any time in the 3 years preceding the application for the
licence or certificate of registration, was an undischarged
bankrupt, applied to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounded with his or her
creditors or made an assignment of his or her remuneration for
their benefit, unless the Director-General has certified that he or
she is satisfied that the person took all reasonable steps to avoid
the bankruptcy, or
(e) at any time in the 3 years preceding the application for the
licence or certificate of registration, was concerned in the
management of a corporation when the corporation was the
subject of a winding up order or when a controller or
administrator was appointed, unless the Director-General is
satisfied that the person took all reasonable steps to avoid the
liquidation or administration, or
(f) is a mentally incapacitated person, or
(g) is disqualified from holding a licence, certificate of registration
or other authority under a corresponding law or is the holder of
such a licence, certificate of registration or other authority that
is suspended, or
(h) is the holder of a licence, permit or other authority that is
suspended under the Fair Trading Act 1987, or
(i) is in partnership with a person who is a disqualified person, or
(j) is for the time being declared to be a disqualified person under
Part 12 (Complaints and disciplinary action), or
(k) is a corporation that is the subject of a winding up order or for
which a controller or administrator has been appointed, or
(l) has failed to pay a contribution or levy payable by the person
under Part 10 (Compensation Fund) and the failure continues,
or
(m) has failed to pay an amount due as a debt to the Crown by way
of recovery of an amount paid out of the Compensation Fund
and the failure continues, or
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Clause 16 Property, Stock and Business Agents Bill 2002
Part 2 Licences and certificates of registration
Division 2 Eligibility, qualifications and disqualification
(n) has failed to pay any monetary penalty payable by the person
under Part 12 (Complaints and disciplinary action) or has failed
to comply with a direction given by the Director-General under
that Part, and the failure continues, or
(o) has failed to provide the Director-General with an auditor's
report that the person is required to provide under this Act on
the audit of the records and documents relating to any money
held in a trust account kept by the person under this Act, unless
the Director-General determines that in the circumstances that
failure should not disqualify the person, or
(p) is in breach of any provision of this Act or the regulations that
is prescribed by the regulations as a disqualifying breach.
(2) The Director-General may determine that an offence committed by a
person should be ignored for the purposes of this section because of
the time that has passed since the offence was committed or because
of the triviality of the acts or omissions giving rise to the offence.
(3) In this section:
corresponding law means a law of another Australian jurisdiction that
is declared by the Minister from time to time by order published in the
Gazette to be a law that corresponds to this Act.
Division 3 Application and issue procedure
17 Application for licence or certificate of registration
(1) An application for a licence or certificate of registration is to be made
to the Director-General in a form approved by the Director-General.
(2) The application is to be accompanied by:
(a) an application fee of an amount prescribed by the regulations,
and
(b) in the case of an application for a licence, the contribution to
the Compensation Fund required to accompany the application,
and
(c) such information and evidence as the Director-General may
request for the purposes of determining the application.
(3) The Director-General may require further information and evidence to
be given in connection with an application.
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Property, Stock and Business Agents Bill 2002 Clause 17
Licences and certificates of registration Part 2
Application and issue procedure Division 3
(4) The Director-General may require the application, and any such
information or evidence, to be verified by statutory declaration.
(5) An application is not duly made until any requirement under this
section is complied with.
(6) A person who in or in connection with an application for a licence or
certificate of registration provides information that is false or
misleading in a material particular is guilty of an offence.
Maximum penalty: 50 penalty units.
18 Consideration of applications
The Director-General may make such inquiries as the Director-General
considers necessary in relation to an application.
19 Determination of applications
(1) After considering an application, the Director-General is to determine
the application by either granting or refusing the application.
(2) The application must not be granted unless the applicant is eligible to
be granted the licence or certificate of registration concerned (as
provided by section 14).
(3) The Director-General must cause notice of the Director-General's
decision on an application (including reasons for the decision if the
decision is to refuse the application) to be given to the applicant.
(4) For the purposes only of any appeal proceedings arising in connection
with an application, the Director-General is taken to have refused the
application if the Director-General has not determined the application
within 8 weeks after the application was duly made.
20 Conditions--general
A licence or certificate of registration may be granted subject to
conditions, including (but not limited to) conditions of the following
kind:
(a) a condition prohibiting the holder from exercising functions
under the licence or certificate of registration otherwise than as
an employee of a licensee whose licence does not contain such
a condition,
(b) a condition requiring the holder to undertake or complete a
specified course of studies within a specified period of time,
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Clause 20 Property, Stock and Business Agents Bill 2002
Part 2 Licences and certificates of registration
Division 3 Application and issue procedure
(c) a condition requiring a licensee or holder of a certificate of
registration to undertake by way of professional development
specified further education or training during the term of the
licence or certificate of registration,
(d) a condition prohibiting the holder from exercising functions
under the authority of the licence or certificate of registration in
relation to specified activities, or prohibiting the holder from
exercising functions under the authority of the licence or
certificate of registration except in relation to specified
activities.
Note. An example of a condition under paragraph (d) is a condition that the holder
of a real estate agent's licence act only as a buyer's agent.
21 Special condition requiring auctioneers to be accredited
(1) Every real estate agent's licence and stock and station agent's licence
is subject to the condition that the holder of the licence must not act as
an auctioneer unless the licensee is accredited as an auctioneer under
this section.
(2) The Director-General may accredit the holder of a real estate agent's
licence or stock and station agent's licence as an auctioneer if the
Director-General is satisfied that the holder has such qualifications in
connection with the conduct of auctions and the functions of
auctioneers as the Director-General may approve from time to time by
order published in the Gazette.
(3) Without limiting the Director-General's power to approve
qualifications, the Director-General may approve qualifications by
reference to any one or more of the following:
(a) the completion of a course of study,
(b) the completion of a period of training in a particular activity,
(c) the attainment of a standard of competency in a particular
activity.
22 Special condition requiring professional indemnity insurance
(1) The regulations may make provision for or with respect to requiring
the holder of a licence to be insured under a policy of professional
indemnity insurance in force with respect to the licensee or his or her
employer. It is a condition of a licence that the holder of the licence be
insured as required by any such regulations.
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Property, Stock and Business Agents Bill 2002 Clause 22
Licences and certificates of registration Part 2
Application and issue procedure Division 3
(2) In particular, the regulations may require that the policy of insurance
be a policy, or a policy of a kind, that is approved by the Minister for
the time being by order published in the Gazette.
(3) An order may provide that a policy is an approved policy if the policy
complies with either or both of the following:
(a) the policy complies with the conditions set out in the order,
(b) the policy is described in the order by reference to the insurer
and the number of the policy or is identified in the order by
other specified particulars.
23 Special conditions for on-site residential property managers and
registered managers
(1) An on-site residential property manager's licence is subject to the
condition that the licensee must not carry on business as an on-site
residential property manager in respect of premises unless:
(a) the licensee's principal place of residence is situated at those
premises, and
(b) the person owns, or has an interest prescribed by the regulations
in, that principal place of residence.
Note. This condition prevents a person from being an on-site residential property
manager for more than one residential complex. To do that, a person must hold a
real estate agent's licence.
(2) The certificate of registration of a registered on-site residential property
manager is subject to a condition that the person must not act as or
exercise any of the functions of a registered on-site residential property
manager except in respect of premises in which is situated the
principal place of residence of the licensee who employs the person.
24 Issue of licence or certificate of registration
(1) Licences and certificates of registration are issued by the
Director-General and are to be in such form and specify such
information as the Director-General determines.
(2) The Director-General may determine that a licence or certificate of
registration is to display a photograph of the holder and for that
purpose may require an applicant to provide a photograph or to permit
his or her photograph to be taken.
Page 23
Clause 24 Property, Stock and Business Agents Bill 2002
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
the Director-General is satisfied has been lost, stolen, damaged or
destroyed. The Director-General may require payment of a fee
prescribed by the regulations for the issue of a replacement licence or
certificate of registration.
25 Duration
(1) A licence or certificate of registration takes effect on the date on which
it is granted or on such later date as may be specified in it and (unless
it is sooner suspended or cancelled) remains in force for 1 year.
(2) If an application for a licence or certificate of registration is by way of
the reissue of an existing licence or certificate of registration, the
existing licence or certificate of registration remains in force until the
application is determined (even if as a result the existing licence or
certificate of registration is in force for more than 1 year).
(3) The holder of a licence or certificate of registration may at any time
surrender it by notice in writing to the Director-General and the licence
is thereby cancelled.
26 Reissue and restoration of a licence or certificate of registration
(1) Application may be made for the reissue of a licence or certificate of
registration during the current term of the licence or certificate of
registration.
(2) An application for the reissue of a licence or certificate of registration
constitutes an application for a new licence or certificate of registration
that is the same as the current licence or certificate of registration, with
the new licence to take effect on the expiry of the current licence or
certificate of registration.
(3) If a licence or certificate of registration expires without an application
having been made for its reissue, an application may be made for the
restoration of the expired licence or certificate or registration but such
an application can only be made within 3 months after the expiry of
the licence or certificate of registration.
(4) The regulations may prescribe a fee as a late application fee to
accompany an application for restoration of an expired licence or
certificate of registration (in addition to any other fee required to
accompany an application for a licence or certificate of registration).
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Property, Stock and Business Agents Bill 2002 Clause 26
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
registration constitutes an application for a new licence or certificate
of registration that is the same as the expired licence or certificate of
registration (but with the new licence to be back-dated to take effect on
the expiry of the expired licence or certificate of registration).
Note. In all other respects applications for reissue or restoration are subject to the
same requirements as apply to and in respect of ordinary applications for a licence
or certificate of registration.
(6) If an application for the restoration of an expired licence or certificate
of registration is duly made:
(a) anything done by the holder of the expired licence or certificate
of registration between its expiry and the determination of the
application for restoration (whether the application is granted or
refused) is taken to have been done as the holder of a licence or
certificate of registration, except for the purposes of sections
8 (1), 9 (1) and 10, and
(b) if the application is granted, the restored licence or certificate of
registration is taken to have had effect from the expiry of the
expired licence or certificate of registration (and is to be
expressed to take effect accordingly).
27 Review by ADT
A person may apply to the Administrative Decisions Tribunal for a
review of any of the following decisions of the Director-General:
(a) a decision refusing to grant a licence or certificate of
registration to the person (including such a decision pursuant to
an application for the reissue or restoration of a licence or
certificate of registration),
(b) a decision to impose a condition on a licence or certificate of
registration of the person.
Page 25
Clause 28 Property, Stock and Business Agents Bill 2002
Part 3 General conduct of licensees and registered persons
Division 1 Place and name of business
Part 3 General conduct of licensees and registered
persons
Division 1 Place and name of business
28 Registered office and address
(1) A licensee must have a registered office within New South Wales.
(2) A licensee who carries on the business of an agent pursuant to a
licence or other authorisation under the laws of another State at an
office (the interstate office) that is within 50 kilometres of New South
Wales may have the licensee's registered office at the interstate office
(even though it is not in New South Wales). The powers of an
authorised officer under this Act may be exercised at the interstate
office.
(3) The address specified in an application for a licence as the address at
which the applicant proposes to carry on business (or, in the case of a
licensee carrying on business at more than one place, the address
specified in the application as the licensee's principal place of
business) is taken to be the registered office of the licensee.
(4) Notice of any change in the location of the registered office must be
lodged by the licensee with the Director-General within the time
prescribed by the regulations.
Maximum penalty: 50 penalty units.
29 Display of name at registered office
(1) A licensee must display legibly and conspicuously outside the
licensee's registered office and any other place at which the licensee's
business as a licensee is carried on:
(a) the licensee's name and description as a licensee, and
(b) a description of the kind of licence or licences held by the
licensee.
(2) In addition, a licensee that is a corporation must display legibly and
conspicuously:
(a) outside the corporation's registered office, the name of the
person in charge of the corporation's registered office, and
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Property, Stock and Business Agents Bill 2002 Clause 29
General conduct of licensees and registered persons Part 3
Place and name of business Division 1
(b) outside any other place at which the business of the corporation
is carried on, the name of the person in charge at that place.
(3) A person must not display or exhibit outside or near the person's
office, house or place of business any sign or other matter that
indicates or implies that the office, house or place of business is that
of a person licensed as a kind of agent under this Act unless the person
is licensed as an agent of that kind.
Maximum penalty: 50 penalty units.
30 Business names
(1) A licensee must not, either alone or together with other persons, carry
on business as a licensee under a name or advertise or hold out that the
licensee carries on business as a licensee under a name unless:
(a) the name consists of the name of the licensee and the name of
each other person, if any, with whom the licensee is carrying
on, or advertising or holding out that the licensee is carrying on,
business as a licensee, or
(b) the name is a business name registered under the Business
Names Act 1962 in relation to the licensee and each other
person, if any, with whom the licensee is carrying on, or
advertising or holding out that the licensee is carrying on,
business as a licensee.
Maximum penalty: 50 penalty units.
(2) The name of a licensee (other than a corporation) consists of the
licensee's full name, or the licensee's surname (or family name)
together with:
(a) the licensee's other name or names, or
(b) the initial or initials of the licensee's other name or names, or
(c) a combination of one or more of the licensee's other name or
names and the initial or initials of the licensee's remaining other
name or names, or
(d) the other name or names by which the licensee is commonly
known or the initial or initials by which the licensee is
commonly known or any combination of one or more of those
names or initials.
(3) The name of a licensee that is a corporation consists of the corporate
name of the corporation.
Page 27
Clause 30 Property, Stock and Business Agents Bill 2002
Part 3 General conduct of licensees and registered persons
Division 1 Place and name of business
(4) The Director-General may, by notice in writing to a licensee, direct that
the licensee must not carry on business under a specified business
name, being a name that:
(a) is the same as, or is a name closely resembling, the name under
which a person who is a disqualified person or whose licence
has been cancelled under or in pursuance of this Act was
carrying on business immediately before the person became a
disqualified person or the person's licence was cancelled, or
(b) implies or is capable of being construed as implying that the
licensee is the successor in the business, or in any way
interested or concerned in continuing the business as a licensee,
of a person who is a disqualified person or whose licence has
been cancelled under or in pursuance of this Act, or
(c) is, in the opinion of the Director-General and in the
circumstances of any particular case, undesirable as being
contrary to the public interest.
(5) A licensee must not contravene a direction under subsection (4).
Maximum penalty: 50 penalty units.
(6) This section does not affect the Business Names Act 1962.
Division 2 Business practices and supervision
31 Each place of business to be in charge of licensee
(1) An individual who carries on business under a licence at more than
one place of business must employ at each of those places of business
(except the place at which the licensee is personally in charge) as the
person in charge of business at that place a person who is the holder
of a licence that an individual is required to hold to carry on that
business.
(2) A corporation that holds a corporation licence must employ as the
person in charge at each place of business at which the corporation
carries on business under the licence a person who is the holder of a
licence that an individual is required to hold to carry on that business.
(3) A licensee must not employ a person to be the person in charge of
business at a place of business of the licensee if the person is also
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Property, Stock and Business Agents Bill 2002 Clause 31
General conduct of licensees and registered persons Part 3
Business practices and supervision Division 2
employed to be the person in charge of business at another place of
business of the licensee or at a place of business of another licensee.
(4) A person employed as the person in charge of business at a place of
business of a licensee must not exercise functions or provide services
on behalf of 2 or more licensees at that place (whether corporations or
individuals) unless those licensees are in partnership.
(5) The Director-General may grant a person an exemption from a
provision of this section. The exemption may be granted
unconditionally or subject to conditions. The Director-General may at
any time by notice in writing to a person granted an exemption revoke
the exemption or vary the conditions of the exemption.
(6) The regulations may specify the matters to be taken into account by the
Director-General in considering whether to grant a person an
exemption from a provision of this section.
Maximum penalty:
(a) 200 penalty units in the case of a corporation, or
(b) 100 penalty units in any other case.
32 Duty of licensee and person in charge to properly supervise business
(1) A licensee must properly supervise the business carried on by the
licensee.
(2) A licensee employed by another licensee (the principal licensee) as the
person in charge of business at a place of business of the principal
licensee must properly supervise the business of the principal licensee
carried on at that place.
(3) The requirement to properly supervise the conduct of business
includes the following requirements:
(a) a requirement to properly supervise employees engaged in the
business,
(b) a requirement to establish procedures designed to ensure that
the provisions of this Act and any other laws relevant to the
conduct of that business are complied with,
(c) a requirement to monitor the conduct of business in a manner
that will ensure as far as practicable that those procedures are
complied with.
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Clause 32 Property, Stock and Business Agents Bill 2002
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
licensees guidelines as to what constitutes the proper supervision of the
business of a licensee. A failure to comply with the requirements of
any such guidelines in connection with the supervision of a business
constitutes a failure to properly supervise the business.
Maximum penalty:
(a) 200 penalty units in the case of a corporation, or
(b) 100 penalty units in any other case.
33 Licensee not to share commission with certain persons
(1) A licensee must not enter into an arrangement with or act in
conjunction with a person that the licensee knows to be an unlicensed
person (other than an employee in the licensee's business as a
licensee) whereby the unlicensed person is entitled to a share of the
commission, fee, gain or reward payable to the licensee in respect of
any transaction by or with him or her as a licensee or generally.
Maximum penalty:
(a) 100 penalty units in the case of a corporation, or
(b) 50 penalty units in any other case.
(2) In this section:
corresponding Act means an Act of another State or a Territory that is
declared by the regulations to be a corresponding Act for the purposes
of this section.
unlicensed person means a person who is not licensed under this Act
or a corresponding Act.
34 Non-commercial subagency agreements to be in writing
(1) An agreement between licensees to share any commission, fee, gain or
reward paid or payable to a licensee in respect of any services
performed by him or her as a licensee is unenforceable unless the
agreement is in writing, is signed by the licensees and contains such
terms (if any) as may be prescribed by the regulations.
(2) Any provision in, or applying to, such an agreement and purporting to
exclude, modify or restrict the operation of the terms (if any) required
by this section to be contained in the agreement has no force or effect.
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Property, Stock and Business Agents Bill 2002 Clause 34
General conduct of licensees and registered persons Part 3
Business practices and supervision Division 2
(3) A licensee who enters into an agreement a provision of which is
unenforceable because of this section is guilty of an offence.
Maximum penalty: 50 penalty units.
(4) This section does not apply to:
(a) an agreement between licensees who are in partnership with
one another or in the relationship of employer and employee
with one another, or
(b) an agreement, transaction, circumstance or person prescribed by
the regulations as exempt from this section or an agreement,
transaction, circumstance or person of a class or description
prescribed by the regulations as exempt from this section, or
(c) an agreement in respect of services relating to commercial land,
being land used or intended to be used solely or principally for
commercial, business or industrial purposes, but not including
land used or intended to be used solely or principally for
agricultural or pastoral purposes.
35 Franchising agreements
(1) A licensee who enters into a franchising agreement in connection with
the conduct of the licensee's business as licensee must give notice of
the agreement to the Director-General. The notice must be in the form
approved by the Director-General and must be given within 30 days
after the agreement is entered into.
Maximum penalty: 100 penalty units.
(2) The franchisor under a franchising agreement must notify the
Director-General in writing within 7 days after becoming aware of any
failure to account by a licensee who is a party to the franchising
agreement.
Maximum penalty: 100 penalty units.
(3) In this section:
failure to account has the same meaning as in Part 9 (Management
and receivership).
franchising agreement means an agreement whereby a licensee is
authorised to carry on business under any name in consideration of any
other person entitled to carry on business under that name receiving
any consideration whether by way of a share in the profits of the
licensee's business or otherwise.
Page 31
Clause 36 Property, Stock and Business Agents Bill 2002
Part 3 General conduct of licensees and registered persons
Division 2 Business practices and supervision
36 Review of commission and fees
(1) An action or other proceedings cannot be commenced by a licensee for
the recovery of remuneration or any sum as reimbursement for
expenses until the expiration of 28 days after a statement of claim has
been served personally or by post on the person to be charged with the
remuneration or expenses.
(2) The statement of claim must be in writing, set out the amount claimed
and contain details of the services performed by the licensee in respect
of which the remuneration or expenses are claimed.
(3) If money has been paid to or is or has been retained by a licensee (out
of money received by or paid to the licensee) in respect of any
transaction by or with the licensee as a licensee and has been so paid
or retained as remuneration or as reimbursement for expenses in
connection with the transaction, the person paying the money or the
person who would be entitled to the money had the money not been
retained, may require the licensee to furnish the person with an
itemised account of the transaction in accordance with the regulations.
(4) A person who is served with a statement of claim under this section or
is provided with an itemised account of a transaction as provided by
this section may apply to the Tribunal for the determination of a
consumer claim within the meaning of Consumer Claims Act 1998 in
relation to:
(a) the entitlement of the licensee to the whole or any part of the
amount specified in the statement of claim or the itemised
account, or
(b) whether the whole or any part of the amount is reasonable,
or both.
(5) For the purpose of the application of the Consumer Claims Act 1998
to that person, a reference in that Act to a consumer is taken to
include a reference to that person.
(6) The Tribunal has jurisdiction to hear and determine any such consumer
claim despite:
(a) the terms or conditions of any agreement or contract entered
into between the licensee and the applicant, and
(b) the amount being more or less than the maximum amount (if
any) of remuneration to which a licensee is entitled under this
Act.
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Property, Stock and Business Agents Bill 2002 Clause 36
General conduct of licensees and registered persons Part 3
Business practices and supervision Division 2
(7) This section does not limit the Consumer Claims Act 1998.
(8) In this section:
expenses means expenses or charges incurred in connection with
services performed by a licensee in his or her capacity as a licensee.
remuneration means remuneration by way of commission, fee, gain
or reward for services performed by a licensee in his or her capacity as
a licensee.
Tribunal means the Tribunal under the Consumer Claims Act 1998.
37 Rules of conduct for licensee's business
The regulations may prescribe rules of conduct to be observed in the
course of the carrying on of business or the exercise of functions under
a licence or certificate of registration.
Note. Part 12 (Complaints and disciplinary action) provides that a contravention
of a provision of the regulations is grounds for taking disciplinary action against a
person.
38 Undertakings by licensees and registered persons
The Director-General may accept a written undertaking from the holder
of a licence or certificate of registration as to the manner in which the
holder will exercise functions under the licence or certificate of
registration.
Note. Part 12 provides that a breach of such an undertaking is grounds for taking
disciplinary action against a person.
39 Duty of licensee to notify defalcation
(1) A licensee must notify the Director-General as soon as practicable after
becoming aware of any failure to account by the licensee.
Maximum penalty: 50 penalty units.
(2) In this section:
failure to account has the same meaning as in Part 9 (Management
and receivership).
Page 33
Clause 40 Property, Stock and Business Agents Bill 2002
Part 3 General conduct of licensees and registered persons
Division 2 Business practices and supervision
40 Industry association to report defalcation
A body engaged in the provision of services to agents as an industry
association or similar undertaking must notify the Director-General in
writing within 7 days after becoming aware of any failure to account
by a licensee.
Maximum penalty: 100 penalty units.
Division 3 Employees
41 Liability of licensee for acts of employees
A licensee who employs a person at any place of business of the
licensee is responsible, in tort and in contract, for anything done or not
done by the person:
(a) within the scope of the employee's authority, or
(b) for the benefit, or the purported or intended benefit, of the
licensee or the licensee's business.
42 Licensee to keep records of certain employees
(1) A licensee must make and keep a record of the name and residential
address of each employee that the licensee employs as a real estate
salesperson, stock and station salesperson, business salesperson or
registered manager.
(2) The licensee must keep the record for at least 3 years after the person
ceases to be an employee.
(3) The licensee must keep the record in the form of a register of
employees and that register must be kept at the place of business of the
licensee at which the employee is employed or at such other place as
the Director-General may approve.
Maximum penalty: 50 penalty units.
43 Duty of licensee not to employ certain persons
(1) A licensee must not employ a person in any capacity in connection
with the carrying on of the business conducted by the licensee if the
person:
(a) is a disqualified person, or
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Property, Stock and Business Agents Bill 2002 Clause 43
General conduct of licensees and registered persons Part 3
Employees Division 3
(b) has had his or her licence or certificate of registration
suspended or cancelled under this Act (unless the person
currently holds a licence or certificate of registration), or
(c) has had an application for a licence or certificate of registration
refused on the ground that the person was not a fit and proper
person to hold a licence or certificate of registration (unless the
person currently holds a licence or certificate of registration).
Maximum penalty: 50 penalty units.
(2) It is a defence to a prosecution for an offence under this section if the
licensee establishes that the licensee did not know, and could not
reasonably be expected to have known after diligent inquiry, that the
person was a person whose employment by the licensee was
prohibited by this section.
44 Duty of licensee to notify disqualification of employee
A licensee must notify the Director-General in writing within 7 days
after becoming aware that a person employed by the licensee has
become a disqualified person.
Maximum penalty: 50 penalty units.
45 Employees required to notify disqualification
A person employed by a licensee must notify the licensee within 7
days after the person becomes a disqualified person.
Maximum penalty: 50 penalty units.
Division 4 Conflicts of interest
46 Financial and investment advice by real estate agents
(1) The regulations may make provision for or with respect to requiring a
real estate agent who provides financial or investment advice to a
person in connection with the sale or purchase of land to provide to the
person specified information or warnings.
(2) A real estate agent who fails to comply with a requirement of the
regulations under this section is guilty of an offence.
Maximum penalty: 200 penalty units.
Page 35
Clause 47 Property, Stock and Business Agents Bill 2002
Part 3 General conduct of licensees and registered persons
Division 4 Conflicts of interest
47 Duty of disclosure to client and prospective buyer of land
(1) A buyer's or seller's agent acting on the sale or purchase of land must
disclose the following to the person for whom the agent is acting (the
client) and (in addition, in the case of the seller's agent) any
prospective buyer of the land:
(a) any relationship, and the nature of the relationship (whether
personal or commercial), the agent has with anyone to whom
the agent refers the client or a prospective buyer for
professional services associated with the sale or purchase,
(b) whether the agent derives or expects to derive any
consideration, whether monetary or otherwise, from a person to
whom the agent has referred the client or a prospective buyer
and, if so, the amount or value of the consideration,
(c) the amount, value or nature of any benefit any person has
received, receives, or expects to receive in connection with the
sale or purchase, or for promoting the sale or purchase, or for
providing a service in connection with the sale or purchase, of
the land.
Note. The following are examples of relationships for the purposes of subsection
(1) (a):
(a) a family relationship,
(b) a business relationship, other than a casual business relationship,
(c) a fiduciary relationship,
(d) a relationship in which 1 person is accustomed, or obliged, to act in
accordance with the directions, instructions, or wishes of the other.
The following are examples for the purposes of subsection (1) (c) of persons who
may receive a benefit:
(a) seller,
(b) finance broker,
(c) financial adviser,
(d) financier,
(e) property valuer,
(f) legal practitioner,
(g) real estate agent.
Maximum penalty: 200 penalty units.
(2) Disclosure to a person is effective for the purposes of subsection (1)
only if:
(a) it is given to the person in a form approved by the
Director-General, and
(b) it is acknowledged by the person in writing on the form, and
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Property, Stock and Business Agents Bill 2002 Clause 47
General conduct of licensees and registered persons Part 3
Conflicts of interest Division 4
(c) it is given and acknowledged before a contract for the sale of
the residential property is entered into.
(3) In this section:
benefit means monetary or other benefit.
buyer's agent means:
(a) a real estate agent acting for a buyer of land, or
(b) a real estate salesperson acting for that real estate agent.
seller's agent means:
(a) a real estate agent acting for the vendor of land, or
(b) a real estate salesperson acting for that real estate agent.
48 Duty not to act for both buyer and seller of land
(1) A licensee must not act in his or her capacity as licensee on behalf of
both the buyer and the seller of land at the same time.
(2) A licensee must not enter into agency agreements in respect of the
purchase or sale of land if the performance of services by the licensee
under the agreements will or can result in the licensee acting in his or
her capacity as licensee on behalf of both the buyer and the seller of
the land at the same time.
Maximum penalty:
(a) 200 penalty units in the case of a corporation, or
(b) 100 penalty units in any other case.
49 Restrictions on licensee obtaining beneficial interest in property
(1) A real estate agent who is retained by a person (the client) as an agent
for the sale of property must not obtain or be in any way concerned in
obtaining a beneficial interest in the property.
Maximum penalty: 200 penalty units or imprisonment for 2 years, or
both.
(2) A real estate salesperson employed by the real estate agent must not
obtain or be in any way concerned in obtaining a beneficial interest in
the property.
Maximum penalty: 200 penalty units or imprisonment for 2 years, or
both.
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Clause 49 Property, Stock and Business Agents Bill 2002
Part 3 General conduct of licensees and registered persons
Division 4 Conflicts of interest
(3) A person does not contravene this section by obtaining a beneficial
interest in property if:
(a) before the person obtains the interest, the client consents in
writing in a form approved by the Director-General to the
person obtaining the interest, and
(b) the person acts fairly and reasonably in relation to the obtaining
of the interest, and
(c) no commission or other reward is payable to the person in
relation to the transaction by which the interest is obtained,
unless the client consents in writing in a form approved by the
Director-General to the commission or other reward being paid.
(4) Without limiting this section, a person is considered to obtain a
beneficial interest in property if:
(a) the person or a close relative of the person obtains a beneficial
interest in the property, or
(b) a corporation having not less than 100 members and of which
the person or a close relative of the person is a member, or a
subsidiary of such a corporation, obtains a beneficial interest in
the property, or
(c) a corporation of which the person or a close relative of the
person is an executive officer obtains a beneficial interest in the
property, or
(d) the trustee of a discretionary trust of which the person or a close
relative of the person is a beneficiary obtains a beneficial
interest in the property, or
(e) a member of a firm or partnership of which the person or a
close relative of the person is also a member obtains a
beneficial interest in the property, or
(f) the person or a close relative of the person has, directly or
indirectly, a right to participate in the income or profits of a
business carried on for profit or gain and another person
carrying on that business obtains a beneficial interest in the
property.
(5) Without limiting this section, each of the following is considered to
constitute the obtaining of a beneficial interest in property:
(a) purchasing property,
(b) obtaining an option to purchase property,
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Property, Stock and Business Agents Bill 2002 Clause 49
General conduct of licensees and registered persons Part 3
Conflicts of interest Division 4
(c) being granted a general power of appointment in respect of
property.
(6) In this section:
close relative of a person means:
(a) a spouse of the person, or
(b) a de facto partner who is living or has lived with the person as
the person's husband or wife on a bona fide domestic basis
although not married to the person, or
(c) a child, grandchild, sibling, parent or grandparent of the person,
whether derived through paragraph (a) or (b) or otherwise, or
(d) any other person who has a relationship with the person that is
prescribed by the regulations as constituting the relationship of
close relative for the purposes of this section.
property includes an interest in property.
Division 5 Advertisements and representations
50 Advertisements to include information about licensee
(1) A licensee must not publish (in a newspaper or otherwise) an
advertisement relating to or in connection with the licensee's business
unless the advertisement includes the following:
(a) if the licensee is an individual carrying on business in the
licensee's own name and is not a member of a partnership--the
licensee's name,
(b) if the licensee is an individual carrying on business under a
business name registered under any Act relating to the
registration of business names--either the licensee's name or
that business name,
(c) if the licensee carries on business as a member of a
partnership--either the licensee's name or the name of the
partnership, or the name under which the partnership is
registered under any Act relating to the registration of business
names,
(d) if the licensee is a corporation and the corporation is carrying
on business in its own name--the name of the corporation,
Page 39
Clause 50 Property, Stock and Business Agents Bill 2002
Part 3 General conduct of licensees and registered persons
Division 5 Advertisements and representations
(e) if the licensee is a corporation and the corporation is carrying
on business under a business name registered under any Act
relating to the registration of business names--either its own
name or that business name.
(2) If a licensee has an interest in any real or personal property as a
principal, the licensee must not publish an advertisement relating to or
in connection with the property in a newspaper or otherwise without
disclosing that interest in the advertisement.
Maximum penalty: 100 penalty units.
51 Publishing false or misleading advertisements
(1) A licensee must not publish or cause to be published in the course of
carrying on business as a licensee any statement that:
(a) is intended or apparently intended by the licensee to promote
the sale or lease of any property, and
(b) is materially false, misleading or deceptive (whether to the
licensee's knowledge or not).
Maximum penalty: 200 penalty units.
(2) Without limiting the generality of subsection (1), a statement is taken
to be false or misleading for the purposes of this section if it is of such
a nature that it would reasonably tend to lead to a belief in the
existence of a state of affairs that does not in fact exist, whether or not
the statement indicates that the state of affairs does exist.
(3) A statement is published if it is:
(a) inserted in any newspaper, periodical publication or other
publication, or
(b) publicly exhibited in, on, over or under any building, vehicle or
place (whether or not a public place and whether on land or
water), or in the air in view of persons being or passing in or on
any street or public place, or
(c) contained in any document gratuitously sent or delivered to any
person or thrown or left upon premises in the occupation of any
person, or
(d) broadcast by radio or television, or
(e) disseminated by means of an Internet website or electronic
mail.
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Property, Stock and Business Agents Bill 2002 Clause 51
General conduct of licensees and registered persons Part 3
Advertisements and representations Division 5
(4) It is a defence to a prosecution against a person for an offence under
this section if the person proves that:
(a) the person took all reasonable precautions against committing
the offence, and
(b) the person believed on reasonable grounds that the statement
was true or (in the case of a statement that would reasonably
tend to lead to a belief in the existence of a state of affairs that
does not in fact exist) the person believed on reasonable
grounds that the state of affairs existed, and
(c) the person had no reason to suspect that the statement was false
or misleading.
(5) Despite any proceedings against a person for an offence under this
section (whether resulting in a conviction or otherwise) the person
remains liable to all civil proceedings as if the proceedings for an
offence had not been taken.
(6) This section is to be read as being in addition to and not in derogation
from any enactment or law relating to false or misleading
advertisements or other statements.
52 Misrepresentation by licensee or registered person
(1) A person who, while exercising or performing any function as a
licensee or registered person, by any statement, representation or
promise that is false, misleading or deceptive (whether to the
knowledge of the person or not) or by any concealment of a material
fact (whether intended or not), induces any other person to enter into
any contract or arrangement is guilty of an offence against this Act.
Maximum penalty: 200 penalty units.
(2) Without limiting the generality of subsection (1), a statement,
representation or promise is taken to be false, misleading or deceptive
if it is of such a nature that it would reasonably tend to lead to a belief
in the existence of a state of affairs that does not in fact exist, whether
or not the statement, representation or promise indicates that the state
of affairs does exist.
(3) It is a sufficient defence to a prosecution for an offence under this
section if the defendant proves that the defendant did not know, and
had no reasonable cause to suspect, that the statement, representation
or promise was false, misleading or deceptive.
Page 41
Clause 53 Property, Stock and Business Agents Bill 2002
Part 3 General conduct of licensees and registered persons
Division 5 Advertisements and representations
53 Damages for misrepresentation or concealment
No term or provision of any agreement (whether entered into before or
after the commencement of this section) for the sale and purchase of
land or any interest in land operates to prevent the purchaser from
claiming or being awarded damages or any other relief in respect of
any misrepresentation or concealment in connection with the sale and
purchase of the land or interest.
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Property, Stock and Business Agents Bill 2002 Clause 54
Agency agreements Part 4
Requirements for agency agreements Division 1
Part 4 Agency agreements
Division 1 Requirements for agency agreements
54 Definitions
In this Division:
commission means remuneration by way of commission, fee, gain or
reward for services performed by a licensee in the capacity of licensee.
expenses means any sum or reimbursement for expenses or charges
incurred in connection with services performed by a licensee in the
capacity of licensee.
55 No entitlement to commission or expenses without agency agreement
(1) A licensee is not entitled to any commission or expenses from a
person for or in connection with services performed by the licensee in
the capacity of licensee for or on behalf of the person unless:
(a) the services were performed pursuant to an agreement in
writing (an agency agreement) signed by or on behalf of the
person and the licensee, and
(b) the agency agreement complies with any applicable
requirements of the regulations, and
(c) a copy of the agency agreement signed by the licensee was
served by the licensee on that person within 48 hours after the
agreement was signed by or on behalf of the person.
(2) The regulations may make provision for or with respect to regulating
the form of agency agreements and the terms, conditions and other
provisions that an agency agreement must or must not contain. Without
limiting this subsection, the regulations may prescribe one or more
standard forms of agency agreement.
(3) Without limiting the means by which a copy of the agency agreement
may be served on a person, it may be served by means of facsimile
transmission or by such other means as the regulations may allow.
(4) A court or tribunal before which proceedings are taken by a licensee
for the recovery of commission or expenses from a person may order
that the commission or expenses are wholly or partly recoverable
Page 43
Clause 55 Property, Stock and Business Agents Bill 2002
Part 4 Agency agreements
Division 1 Requirements for agency agreements
despite a failure by the licensee to serve a copy of the relevant agency
agreement on the person within 48 hours after it was signed by or on
behalf of the person.
(5) A court or tribunal is not to make such an order unless satisfied that:
(a) the failure to serve a copy of the agreement within the required
time was occasioned by inadvertence or other cause beyond the
control of the licensee, and
(b) the commission or expenses that will be recoverable if the
order is made are in all the circumstances fair and reasonable,
and
(c) failure to make the order would be unjust.
56 Approved guide to be provided before agency agreement for residential
property signed
(1) A real estate agent must not enter into an agency agreement with a
person for the sale of residential property unless the agent has
provided the person with a copy of the approved guide not more than
1 month before the agreement is signed by or on behalf of the person.
Maximum penalty: 40 penalty units.
(2) In this section:
approved guide means a guide with respect to the sale of residential
property approved by the Director-General from time to time for the
purposes of this section.
(3) A contravention of this section does not affect the validity of the
agency agreement.
57 Agency agreement must disclose rebates, discounts and commissions
(1) A licensee is not entitled to any expenses from a person for or in
connection with services performed by the licensee in the capacity of
licensee for or on behalf of the person in connection with a real estate
transaction unless the agency agreement pursuant to which the licensee
performs those services contains a statement:
(a) identifying the source of all rebates, discounts or commissions
that the licensee will or may receive in respect of those
expenses, and
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Property, Stock and Business Agents Bill 2002 Clause 57
Agency agreements Part 4
Requirements for agency agreements Division 1
(b) specifying the estimated amount of those rebates, discounts or
commissions (to the extent that the amount can reasonably be
estimated).
(2) This section does not apply in respect of a real estate transaction
relating to commercial land, being land used or intended to be used
solely or principally for commercial, business or industrial purposes,
but not including land used or intended to be used solely or principally
for agricultural or pastoral purposes.
58 Prohibition against listing residential or rural land subject to sole or
exclusive agency
(1) A licensee must not enter into an agency agreement with a person in
respect of the sale or purchase of residential property or rural land by
the person if:
(a) the agreement provides for an entitlement to commission in
respect of services to be provided at a time when the property
or land is or is to be the subject of a sole agency agreement or
exclusive agency agreement with another licensee for the
provision of those services, and
(b) the licensee knows or has reasonable cause to suspect that the
person has entered into that sole agency agreement or exclusive
agency agreement.
(2) A licensee must not solicit or encourage a person to enter into an
agency agreement with the licensee if the licensee is prohibited from
entering into the agreement by this section.
Maximum penalty:
(a) 200 penalty units in the case of a corporation, or
(b) 100 penalty units in any other case.
(3) A licensee is not entitled to any commission or expenses from a
person for or in connection with services performed by the licensee
pursuant to an agency agreement entered into by the licensee in
contravention of this section.
(4) In this section:
commission includes fee, gain and reward.
exclusive agency agreement means an agency agreement under which
an agent agrees to act for the seller or buyer (the client) on the sale or
purchase of property and that provides for the agent to be entitled to
Page 45
Clause 58 Property, Stock and Business Agents Bill 2002
Part 4 Agency agreements
Division 1 Requirements for agency agreements
commission on the happening of an event whether or not the agent is
the effective cause of the happening of the event and whether or not
the client is the effective cause of the happening of the event.
sole agency agreement means an agency agreement under which an
agent agrees to act for the seller or buyer (the client) on the sale or
purchase of property and that provides for the agent to be entitled to
commission on the happening of an event (whether or not the agent is
the effective cause of the happening of the event) unless the client is
the effective cause of the happening of the event.
Division 2 Cooling-off period for residential or rural agency
agreements
59 Cooling-off period for residential or rural agency agreements
(1) There is to be a cooling-off period for every agency agreement in
respect of the sale of residential property or rural land.
(2) The cooling-off period commences when the agency agreement is
signed and ends at 5 pm on the next day that is a business day or a
Saturday.
(3) An agency agreement is signed when it is signed by or on behalf of the
person (the client) for whom services are to be performed under the
agreement. If there is more than one client, the agreement is signed
when the last client to sign signs the agreement.
(4) The cooling-off period may be extended by a provision of the agency
agreement, or by the agent in writing before the end of the cooling-off
period.
(5) There is no cooling-off period if:
(a) at least 1 business day before the client signs the agency
agreement the agent provides the client with a copy of the
proposed agency agreement together with (in the case of an
agreement that relates to residential land) a copy of a consumer
guide approved by the Director-General from time to time for
the purposes of this section, and
(b) before the client signs the agency agreement the client signs a
form of waiver of cooling-off period in a form approved by the
Director-General by order published in the Gazette.
Page 46
Property, Stock and Business Agents Bill 2002 Clause 60
Agency agreements Part 4
Cooling-off period for residential or rural agency agreements Division 2
60 Agency agreement can be rescinded during cooling-off period
(1) The client can rescind an agency agreement by serving a notice of
rescission on the agent under the agreement during the cooling-off
period for the agreement.
(2) To be effective, the notice of rescission must:
(a) be in writing addressed to the agent and be to the effect that the
client rescinds the agreement, and
(b) be signed by the client or the client's solicitor or, if there is
more than one client, by each client or their respective
solicitors, and
(c) be served on the agent in one of the ways provided for by this
section.
(3) A notice of rescission may be served on an agent in any of the
following ways:
(a) by being given to the agent personally,
(b) by being delivered to or left at a place of business of the agent
or at any other address specified in the agency agreement as a
place where a notice of rescission may be given,
(c) by facsimile transmission.
61 Effect of rescission
(1) On service of a notice of rescission, the agency agreement is taken to
be rescinded from the time it was entered into.
(2) Neither the agent nor the client is liable to pay any sum for
commission, damages, costs or expenses for or in connection with the
agency agreement or its rescission.
(3) The agent must refund to the client any money paid to the agent under
a rescinded agency agreement.
62 No contracting out
A provision of an agency agreement or any other agreement or
arrangement is void to the extent that it would (but for this section)
have the effect of excluding, modifying or restricting the operation of
this Division.
Page 47
Clause 63 Property, Stock and Business Agents Bill 2002
Part 5 Residential property and rural land sales
Division 1 Contract for sale of residential property
Part 5 Residential property and rural land sales
Division 1 Contract for sale of residential property
63 Proposed contract for sale of residential property
(1) In this section:
purchaser includes a grantee of an option.
(2) A real estate agent must not offer residential property for sale unless
the required documents are all available for inspection at the real estate
agent's registered office by a prospective purchaser or agent for a
prospective purchaser at all times at which an offer to purchase the
property may be made (or at such other place or at such other times as
may be prescribed by the regulations).
(3) A real estate agent is considered to offer residential property for sale
when the agent, expressly or by implication:
(a) indicates that residential property is for sale or is to be
auctioned at any future time, or
(b) offers to sell residential property, or
(c) invites an offer to purchase residential property, or
(d) indicates that a person may be willing to grant an option to
purchase residential property.
(4) The required documents for the purposes of this section are:
(a) a copy of the proposed contract for the sale of the property
(excluding particulars of the purchaser and purchase price), and
(b) the documents required by section 52A of the Conveyancing
Act 1919 to be attached to the contract before signature by the
purchaser, and
(c) in the case of an option to purchase residential property--a
copy of the proposed option document (excluding particulars of
the purchaser and consideration for the option).
(5) Without limiting this section, a real estate agent is taken to indicate that
residential property is for sale if the real estate agent does any of the
following or causes or permits any of the following to be done:
Page 48
Property, Stock and Business Agents Bill 2002 Clause 63
Residential property and rural land sales Part 5
Contract for sale of residential property Division 1
(a) advertises or promotes the property in any way that, in the
circumstances, may reasonably be taken to indicate that the
property is or may be for sale,
(b) places a sign on or near the property that, in the circumstances,
may reasonably be taken to indicate that the property is or may
be for sale,
(c) advertises or in any way gives notice that the property is to be
auctioned at any future time,
(d) places on display particulars or a description of, or a
photograph, drawing or other representation of, the property in
or on any premises, vehicle or place where the real estate agent
conducts business as a real estate agent,
(e) shows the property to a prospective purchaser or gives the
address of the property to a prospective purchaser.
(6) This section does not apply to anything done by a real estate agent
when acting on behalf of a prospective purchaser of residential
property.
(7) The regulations may create exceptions to this section.
Maximum penalty: 100 penalty units.
64 Contracts for sale of residential property
(1) A real estate agent may do any of the following:
(a) fill up a proposed contract for the sale of residential property,
by inserting details of the purchaser's name, address and
description, the purchaser's solicitor's name and address, the
purchase price and the date,
(b) insert in or delete from a contract for the sale of residential
property any description of any furnishings or chattels to be
included in the sale of the property,
(c) participate in the exchange or making of contracts for the sale
of residential property.
(2) If a prospective party to a proposed contract for the sale of residential
property for whom a real estate agent acts in relation to the exchange
or making of the contract notifies the real estate agent, or it is apparent
from the proposed contract, that a solicitor is or will be acting for the
Page 49
Clause 64 Property, Stock and Business Agents Bill 2002
Part 5 Residential property and rural land sales
Division 1 Contract for sale of residential property
party, the real estate agent may not participate in the exchange or
making of the contract unless expressly authorised to do so by the
party or the solicitor. A contract is not invalid merely because of the
failure of a real estate agent to comply with this subsection.
(3) A real estate agent who exercises any function pursuant to this section
on behalf of any person who is a party or a prospective party to any
contract or proposed contract is liable to compensate that person for
any loss, damage or expense suffered or incurred by that person as a
result of any negligent act or omission, or any unauthorised action, of
the real estate agent in the exercise of that function.
(4) A real estate agent may not charge a fee for anything authorised to be
done under this section.
(5) This section does not affect the existence or nature of any other
functions or responsibilities of licensees that exist or may exist apart
from this section.
(6) In this section:
solicitor includes a licensee under the Conveyancers Licensing
Act 1995.
65 Procedure following rescission
(1) If a contract for the sale of residential property or an option for the
purchase of residential property is rescinded under Division 8 or 9 of
Part 4 of the Conveyancing Act 1919, a real estate agent who holds
money paid by the purchaser by way of deposit under or in relation to
the contract or the proposed contract attached to the option is
authorised to deal with that money as provided by this section.
(2) The real estate agent is authorised to pay to the vendor so much of the
money as does not exceed the amount (if any) forfeited under section
66V or 66ZE of that Act, and receipt by the real estate agent of the
original or a copy of an effective notice of rescission served by the
purchaser under section 66U or 66ZD of that Act is sufficient
authority for the real estate agent to make the payment to the vendor.
(3) The regulations may make provision for or with respect to authorising
the real estate agent to pay to the purchaser the balance of the money.
Page 50
Property, Stock and Business Agents Bill 2002 Clause 65
Residential property and rural land sales Part 5
Contract for sale of residential property Division 1
(4) In this section:
deposit includes any amount paid by the purchaser in relation to the
contract or the proposed contract attached to the option or on account
of the purchase price of residential property.
purchaser includes a prospective purchaser and a grantee or
prospective grantee of an option.
Division 2 Bidding at auction of residential property or rural
land
66 Restrictions on bidding by or on behalf of seller or auctioneer
(1) A sale by auction of residential property or rural land must be notified
in the conditions of sale to be subject to the right by the seller or by
any person on behalf of the seller or auctioneer to make 1 bid (and
only 1 bid).
(2) At a sale by auction of residential property or rural land:
(a) the seller or any person on behalf of the seller or auctioneer
must not bid unless the right to bid has been notified in the
conditions of sale, and
(b) the seller or any person on behalf of the seller or auctioneer
must not make more than one bid and must not make any bid
if one of them has already bid, and
(c) the auctioneer must not take from the seller or any person on
behalf of the seller or auctioneer any bid knowing that the bid
is in contravention of this section, and
(d) when the auctioneer takes a bid from the seller or any person on
behalf of the seller or auctioneer the auctioneer must, as soon
as the bid is taken, clearly state that the bid is a bid by the seller
or a person on behalf of the seller or auctioneer.
Maximum penalty: 200 penalty units.
67 Bids may only be taken from registered bidders
(1) The auctioneer at a sale by auction of residential property or rural land
must not take a bid from a person unless:
Page 51
Clause 67 Property, Stock and Business Agents Bill 2002
Part 5 Residential property and rural land sales
Division 2 Bidding at auction of residential property or rural land
(a) the relevant details of the person have been entered before the
bid is taken in a Bidders Record made in respect of the auction
in accordance with section 68, and the auctioneer is in
possession of that record when the bid is taken, and
(b) the person is identified at the auction by the person displaying
an identifying number allocated to the person for the purposes
of the auction and recorded in the Bidders Record as the
identifying number allocated to the person.
Maximum penalty: 100 penalty units.
(2) An auctioneer who refuses to take a bid from a person because of this
section does not incur a liability to any person as a result of that
refusal.
(3) The taking of a bid in contravention of this section does not affect the
validity of the bid (or its taking or acceptance) and the bid (and its
taking or acceptance) are as valid for all purposes as if this section had
not been enacted.
68 Bidders Record
(1) Before residential property or rural land is offered for sale by auction,
a record (the Bidders Record) must be made of the persons who will
be entitled to bid at the auction and there must be entered in the
Bidders Record in respect of each of those persons:
(a) the relevant details of the person, and
(b) the identifying number allocated to the person for the purposes
of identifying the person at the auction, and
(c) such other information as the regulations may require.
(2) The relevant details of a person are:
(a) the person's name and address and the number or other
identifier of proof of identity for that person, and
(b) in addition, in the case of a person bidding on behalf of another
person, the name and address of that other person and the
number or other identifier of proof of identity for that other
person.
Page 52
Property, Stock and Business Agents Bill 2002 Clause 68
Residential property and rural land sales Part 5
Bidding at auction of residential property or rural land Division 2
(3) A real estate agent engaged to act in respect of the sale of residential
property or rural land by auction must make the Bidders Record
required by this section for the auction unless some other agent
engaged to act in respect of the sale or acting for or on behalf of the
auctioneer has made the Bidders Record for the auction.
(4) An agent is to keep a Bidders Record made by the agent for at least 3
years and is to keep all the Bidders Records made by the agent
together, in the form of a Register of Bidders Records.
(5) The regulations may make provision for or with respect to:
(a) conferring an entitlement on a seller of residential property to
inspect the Bidders Record for the sale of the property, and
(b) the manner and form in which a Bidders Record is to be made
and kept.
Maximum penalty: 100 penalty units.
69 Details to be established by proof of identity
(1) An agent must not enter a person's name and address in a Bidders
Record unless those details are established by the production to the
agent of:
(a) proof of identity for the person, and
(b) in the case of the details of a person on whose behalf another
person is to bid, a letter of authority to bid on the person's
behalf specifying the person's name and address and the
number or other identifier of proof of identity for that person.
Maximum penalty: 100 penalty units.
(2) The only proof of identity that may be used for a person for the
purposes of an entry in a Bidders Record is:
(a) a motor vehicle driver's licence issued in Australia that
displays a photograph of the person, or
(b) an Australian passport, or
(c) such other proof of identity as may be prescribed by the
regulations.
Page 53
Clause 69 Property, Stock and Business Agents Bill 2002
Part 5 Residential property and rural land sales
Division 2 Bidding at auction of residential property or rural land
(3) An agent must not enter the relevant details of a person in a Bidders
Record if the agent knows or has reasonable cause to suspect that the
details are false in a material particular.
Maximum penalty: 100 penalty units.
70 Confidentiality of Bidders Record
(1) An agent who makes a Bidders Record, and any auctioneer to whom
the contents of a Bidders Record are disclosed under this Division,
must not:
(a) divulge any information that the Bidders Record contains
except as authorised or required by this Division, and
(b) must not use the Bidders Record or the information that it
contains for any purpose not authorised by this Division.
Maximum penalty: 100 penalty units.
(2) This section does not prevent the divulging of information to an
authorised officer in accordance with a requirement imposed by or
under this Act.
71 Approved consumer education guide for bidders at auctions
(1) The Director-General may from time to time approve a consumer
education guide for prospective bidders at an auction of residential
property or rural land.
(2) A real estate agent engaged to act in respect of the sale by auction of
residential property or rural land must take all reasonable steps to
ensure that a person who bids at the auction has been provided before
the auction with a copy of the consumer education guide currently
approved under this section.
Maximum penalty: 40 penalty units.
Page 54
Property, Stock and Business Agents Bill 2002 Clause 72
Residential property and rural land sales Part 5
Representations as to selling price of residential property Division 3
Division 3 Representations as to selling price of residential
property
72 False representation to seller or prospective seller
A real estate agent or employee of a real estate agent must not make a
false representation to a seller or prospective seller of residential
property as to the agent's or employee's true estimate of the selling
price of the property.
Maximum penalty: 200 penalty units.
73 False representation to prospective buyer
(1) A real estate agent acting pursuant to an agency agreement for the sale
of residential property or the employee of such an agent must not, by
a statement made in the course of marketing the property, falsely
understate the estimated selling price of the property.
Maximum penalty: 200 penalty units.
(2) An agent or employee is considered to falsely understate the estimated
selling price of residential property if the agent or employee states as
his or her estimate of that selling price a price that is less than his or
her true estimate of that selling price.
(3) A statement is considered to be made in the course of marketing
residential property if the statement is made:
(a) in an advertisement in respect of the property that is published
or caused to be published by the agent, or
(b) to a person (orally or in writing) as a prospective purchaser of
the property.
(4) A statement in the agency agreement of the agent's estimate of the
selling price of residential property is evidence for the purposes of this
section of the agent's true estimate of that selling price.
74 Requirement to substantiate selling price estimates--residential
property
(1) The Director-General may by notice in writing to a real estate agent
require the agent to provide evidence of the reasonableness of any
estimate of the selling price of residential property made by the agent
in a statement:
Page 55
Clause 74 Property, Stock and Business Agents Bill 2002
Part 5 Residential property and rural land sales
Division 3 Representations as to selling price of residential property
(a) orally or in writing to a seller or prospective seller of the
property, or
(b) in an advertisement in respect of the property that is published
or caused to be published by the agent, or
(c) orally or in writing to a person as a prospective purchaser of the
property.
(2) A real estate agent who fails to comply with a notice under this section
within the period for compliance specified in the notice is guilty of an
offence.
Maximum penalty: 200 penalty units.
75 Division extends to estimates of price range
This Division extends to estimated price range in the same way as it
applies to estimated price and for that purpose a reference in this
Division to price is taken to include a reference to price range.
76 Extended meaning of "estimate"
In this Division, estimate includes opinion and belief.
Page 56
Property, Stock and Business Agents Bill 2002 Clause 77
Auctions--general Part 6
Part 6 Auctions--general
77 Prescribed auction conditions
(1) The regulations may prescribe conditions that are to be applicable to
or in respect of the sale by auction of land or livestock.
(2) The regulations may make provision for or with respect to requiring
the notification at a sale by auction of land or livestock of any
conditions that are applicable to the sale.
78 Collusive practices at auction sales
(1) A person must not, in relation to the sale by auction of any land or
livestock, by a collusive practice induce or attempt to induce any other
person:
(a) to abstain from bidding generally, or
(b) to abstain from bidding for any particular lot, or
(c) to bid to a limited extent only, or
(d) to do any other act or thing that might in any way prevent or
tend to prevent free and open competition.
Maximum penalty:
(a) 200 penalty units in the case of a corporation, or
(b) 100 penalty units in any other case.
(2) A person must not as a result of a collusive practice, at a sale by
auction of any land or livestock:
(a) abstain or agree to abstain from bidding generally, or
(b) abstain or agree to abstain from bidding for any particular lot,
or
(c) bid or agree to bid to a limited extent only, or
(d) do or agree to do any other act or thing that might in any way
prevent or tend to prevent free and open competition.
Maximum penalty:
(a) 200 penalty units in the case of a corporation, or
(b) 100 penalty units in any other case.
Page 57
Clause 78 Property, Stock and Business Agents Bill 2002
Part 6 Auctions--general
(3) An auctioneer must not sell by auction any land or livestock unless
notice is given prior to the auction, in such manner and in such terms
as may be prescribed by the regulations, of the material parts of this
section.
Maximum penalty: 20 penalty units.
(4) In this section:
collusive practice means a promise, express or implied, made by a
person that if the person is the successful bidder at auction for land or
livestock:
(a) the person will give the person to whom the promise is made
the right to elect to take over as purchaser through the
auctioneer all or any of the land or livestock at the auction
price, or
(b) the ownership of all or any of the land or livestock will be
determined by tossing or the drawing of lots or any other
method.
79 False entry in auction record
(1) An auctioneer and an employee of an auctioneer must not knowingly
enter in any record kept or required to be kept by the auctioneer as the
purchaser of any land or livestock sold by auction any name other than
the name of the actual successful bidder for the land or livestock.
Maximum penalty for a first offence: In the case of a corporation, 50
penalty units or, in the case of an individual, 20 penalty units.
Maximum penalty for a second or subsequent offence: In the case of
a corporation, 100 penalty units or, in the case of an individual, 50
penalty units.
(2) Any auctioneer who employs any person, being a person who enters,
in any record required to be kept by the auctioneer, as the purchaser of
any land or livestock sold by auction any name other than the name of
the actual successful bidder for the land or livestock, is guilty of an
offence unless the auctioneer establishes that the auctioneer did not
know that a name other than the name of the actual successful bidder
was entered.
Maximum penalty for a first offence: In the case of a corporation,
50 penalty units or, in the case of an individual, 20 penalty units.
Page 58
Property, Stock and Business Agents Bill 2002 Clause 79
Auctions--general Part 6
Maximum penalty for a second or subsequent offence: In the case of
a corporation, 100 penalty units or, in the case of an individual,
50 penalty units.
(3) If the actual successful bidder at a sale by auction of any land or
livestock, as soon as practicable after the auctioneer conducting the
sale has indicated the actual successful bidder but not in any case later
than the day of the sale, informs the auctioneer that the bidder bid on
behalf of another person and informs the auctioneer of the name of that
person, the auctioneer or employee is not guilty of an offence under
this section by reason of the name of that other person being entered
in a record as purchaser of the land or livestock.
80 Misrepresentation as to quality etc
An auctioneer must not knowingly misrepresent, or cause or permit to
be misrepresented, the value, composition, structure, character or
quality, or the origin of manufacture, of any land or livestock put up
for sale at a sale by auction conducted by the auctioneer.
Maximum penalty: 50 penalty units.
81 Restrictions on bidding by or on behalf of seller or auctioneer of
livestock
(1) A sale by auction of livestock may be notified in the conditions of sale
to be subject to the right by the seller or by any person on behalf of the
seller or auctioneer to make 1 bid or such other number of bids as may
be prescribed by the regulations.
(2) At a sale by auction of livestock:
(a) the seller or any person on behalf of the seller or auctioneer
must not bid unless the right to bid has been notified in the
conditions of sale, and
(b) the seller or any person on behalf of the seller or auctioneer
must not make more than the number of bids notified in the
conditions of sale, and
(c) the auctioneer must not take from the seller or any person on
behalf of the seller or auctioneer any bid knowing that the bid
is in contravention of this section.
Maximum penalty: 50 penalty units.
Page 59
Clause 82 Property, Stock and Business Agents Bill 2002
Part 6 Auctions--general
82 Contracting out of prescribed terms and conditions of auction sales
(1) Any provision in, or applying to, an agreement for the sale of property
by auction and purporting to exclude, modify or restrict (otherwise
than in accordance with this or any other Act) the operation of any
conditions prescribed as being applicable to or in respect of the sale by
auction of that property or property of that class or description is void.
(2) A person must not notify or cause to be notified in the conditions of
sale by auction of any property any provision purporting to exclude,
modify or restrict any conditions prescribed as applicable to or in
respect of the sale by auction of that property or property of that class
or description.
Maximum penalty: 50 penalty units.
(3) In this section:
property means land or livestock.
83 Successful bidder at auction to supply information
(1) The actual successful bidder at a sale by auction of any land or
livestock must, as soon as practicable after the auctioneer conducting
the sale has indicated the actual successful bidder but not in any case
later than the day of the sale, supply to the auctioneer or an employee
of the auctioneer:
(a) the bidder's name if the bidder bid on his or her own behalf, or
(b) the name of the person on whose behalf the bidder bid if the
bidder bid on behalf of another person.
Maximum penalty: 20 penalty units.
(2) An auctioneer must not sell by auction any land or livestock unless
notice is given, in such manner and in such terms as may be
prescribed by the regulations, of the material parts of this section.
Maximum penalty: 20 penalty units.
84 Livestock auctions--"comeback" prohibited
(1) An auctioneer must not, at an auction for the sale of livestock, sell by
auction any lot for a price lower than any price bid in relation to the
sale of that lot.
Page 60
Property, Stock and Business Agents Bill 2002 Clause 84
Auctions--general Part 6
(2) For the purposes of this section, a price is bid if it is called by a
prospective purchaser or is attributed to a prospective purchaser by the
auctioneer as being the amount of a bid, and is not withdrawn by the
prospective purchaser prior to the sale of that lot.
Page 61
Clause 85 Property, Stock and Business Agents Bill 2002
Part 7 Trust accounts
Division 1 Preliminary
Part 7 Trust accounts
Division 1 Preliminary
85 Interpretation
(1) In this Part:
trust money means money received for or on behalf of any person by
a licensee in connection with the licensee's business as a licensee.
(2) A reference in this Part to a licensee includes a reference to a person
who has ceased to be a licensee and to the personal representative of
a licensee who has died, and in the application of this Part to:
(a) a person who has ceased to be a licensee, a reference to
moneys received for or on behalf of a person by a licensee is to
be read as a reference to moneys received by that person for or
on behalf of any other person in connection with his or her
business as a licensee, and
(b) the personal representative of a licensee who has died, a
reference to moneys received for or on behalf of a person by a
licensee is to be read as a reference to moneys received by that
licensee or personal representative for or on behalf of a person
in connection with the business carried on by that licensee.
Division 2 Payment of trust money into trust account
86 Trust money to be paid into trust account
(1) Money received for or on behalf of any person by a licensee in
connection with the licensee's business as a licencee:
(a) is to be held by the licensee or (if the licensee is employed by
a corporation) by the corporation, exclusively for that person,
and
(b) is to be paid to the person or disbursed as the person directs,
and
(c) until so paid or disbursed is to be paid into and retained in a
trust account (whether general or separate) at an authorised
Page 62
Property, Stock and Business Agents Bill 2002 Clause 86
Trust accounts Part 7
Payment of trust money into trust account Division 2
deposit-taking institution in New South Wales and approved by
the Director-General for the purposes of this Part.
(2) If the licence is held by a corporation, the trust account is to be in the
name of the corporation and in any other case is to be in the name of
the licensee or of the firm of licensees of which the licensee is a
member.
(3) The words "Trust Account" are to appear in the name of the trust
account and in the description of the trust account in the books and
records of the licensee and also on all cheques drawn on the trust
account.
(4) When opening a trust account at an authorised deposit-taking
institution for the purpose of complying with this section, the licensee
concerned must ensure that the authorised deposit-taking institution is
notified in writing that the account is a trust account required by this
Act.
(5) A licensee must, within 14 days after closing a trust account, notify the
Director-General in writing of the closure.
Maximum penalty: 100 penalty units.
87 Approval of authorised deposit-taking institutions
(1) The Director-General may approve an authorised deposit-taking
institution for the purposes of this Part and may revoke any such
approval by notice in writing to the authorised deposit-taking
institution.
(2) The Director-General is not to approve an authorised deposit-taking
institution for the purposes of this Part unless satisfied that the
institution is able to discharge the obligations of an authorised
deposit-taking institution under this Part.
88 Trust money not available to pay licensee's debts
(1) Trust money is not available for the payment of the debts of the
licensee to any other creditor of the licensee, or liable to be attached or
taken in execution under the order or process of any court at the
instance of any other creditor of the licensee.
(2) This section does not take away or affect any just claim or lien that any
licensee may have against or upon trust money.
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89 Licensee to notify trust account becoming overdrawn
A licensee must, within 5 days after becoming aware that a trust
account of the licensee has become overdrawn, notify the
Director-General in writing of:
(a) the name and number of the account, and
(b) the amount by which the account is overdrawn, and
(c) the reason for the account becoming overdrawn.
Maximum penalty: 100 penalty units.
90 Interest earned on trust accounts to be paid to Statutory Interest
Account
(1) On the first business day after the end of each named month, each
authorised deposit-taking institution must:
(a) calculate interest on the daily balances of all money held during
the month in trust accounts kept with the authorised
deposit-taking institution (being trust accounts notified to the
institution as trust accounts required by this Act) by applying to
those balances the prescribed percentage of the trust account
rate applicable to the institution for the purposes of this section,
and
(b) pay the amount of that interest to the Director-General for
crediting to the Statutory Interest Account.
Maximum penalty: 100 penalty units.
(2) The Minister is required to determine from time to time for the
purposes of this section, after consultation with the Treasurer, a trust
account rate for each authorised deposit-taking institution. The rate
may be a fixed or variable rate and is to be determined by reference to
an interest rate that applies in the short term money market. The same
rate may be determined for some or all authorised deposit-taking
institutions.
(3) As soon as practicable after determining a trust account rate for an
authorised deposit-taking institution, the Minister must inform the
authorised deposit-taking institution of the rate by notice in writing and
publish a notice of the rate in the Gazette.
(4) The prescribed percentage for the purposes of this section is 60 per
cent or such other percentage as the Minister may, from time to time,
determine after consultation with the Treasurer and notify by order
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published in the Gazette. Different prescribed percentages may be
determined in respect of different classes of trust account.
(5) An authorised deposit-taking institution must not deduct transaction or
other charges, other than statutory charges (such as a tax), from the
balances referred to in subsection (1) or from an amount of interest
calculated under that subsection.
(6) The Director-General may, by proceedings brought in a court of
competent jurisdiction, recover as a debt an amount due and payable
to the Director-General under this section.
(7) This section does not apply to a trust account of a class of trust
accounts prescribed by the regulations as exempt from this section.
Division 3 Responsibilities of authorised deposit-taking
financial institutions
91 Monthly returns by authorised deposit-taking institutions
(1) Within 14 days after the end of each named month, an authorised
deposit-taking institution must notify the Director-General in writing
of the following matters with respect to the trust accounts that are
opened with the institution under this Part during the month:
(a) the number of those trust accounts that were opened with the
institution during the month,
(b) the names of the licensees who opened those accounts,
(c) the names and numbers of those accounts and the addresses of
the branches of that institution at which those accounts are kept.
Maximum penalty: 100 penalty units.
(2) Within 14 days after the end of each named month, an authorised
deposit-taking institution must, by notice in writing, inform the
Director-General of the following if a trust account kept with it under
this Part was closed during the month:
(a) the name and number of the account,
(b) the date on which the account was closed.
Maximum penalty: 100 penalty units.
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(3) Within 14 days of the end of each named month, an authorised deposit
taking institution must provide a written report to the Director-General,
certified as correct by the institution, containing the following
information in relation to trust accounts kept by it under this Part
during the month:
(a) the name of the institution and its branch number or its BSB
number,
(b) the period to which the report relates,
(c) the name of each account,
(d) the number of each account,
(e) the end of month balance for each account (including any nil or
overdrawn balances),
(f) the interest earned on each account during the month,
(g) the interest rate applied to calculate the interest earned on each
account during the month,
(h) the total amount of interest that the institution paid under this
Part to the Director-General during the month in respect of the
accounts for crediting to the Statutory Interest Account.
Maximum penalty: 100 penalty units.
(4) The regulations may make provision for or with respect to the
following:
(a) requiring authorised deposit-taking institutions to provide the
Director-General with such information relating to all or any
trust accounts as is specified or described in the regulations,
(b) authorising the Director-General to require an authorised
deposit-taking institution to provide the Director-General with
such information relating to trust accounts identified by the
Director-General as is specified or described by the
Director-General,
(c) any associated matter, including the manner in which, and the
time within which, any such information is to be provided to
the Director-General,
(d) excepting a specified class or classes of trust account from the
operation of this section or specified provisions of this section.
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92 Overdrawn trust accounts
When an authorised deposit-taking institution becomes aware that a
trust account kept with it under this Part is overdrawn, the institution
must as soon as practicable (and in any case within 5 business days)
after becoming so aware inform the Director-General of the following
by notice in writing:
(a) the name and business address of the licensee concerned,
(b) the name and number of the account,
(c) the date on which the account became overdrawn,
(d) the amount by which the account is overdrawn.
Maximum penalty: 100 penalty units.
93 Dishonoured cheques
Within 5 business days of an authorised deposit-taking institution
becoming aware that a cheque presented on a trust account kept with
it under this Part has been dishonoured, the institution must, by notice
in writing, inform the Director-General of the following:
(a) the name and business address of the licensee concerned,
(b) the name and number of the account,
(c) the amount of the dishonour,
(d) the date on which the cheque was dishonoured.
Maximum penalty: 100 penalty units.
94 Annual certification by auditor
Not later than 31 May in each year, an authorised deposit-taking
institution approved for the purposes of this Part must provide to the
Director-General a certificate given by a registered company auditor
(within the meaning of the Corporations Act) certifying as to the
following:
(a) that the institution has complied with the requirements of this
Part in relation to trust accounts kept by it under this Part
during the 12 month period ending on 30 April immediately
preceding that 31 May,
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(b) the total amount of interest that the institution paid under this
Part to the Director-General during that 12 month period in
respect of those trust accounts for crediting to the Statutory
Interest Account.
Maximum penalty: 100 penalty units.
95 Protection of authorised deposit-taking institutions from liability
(1) An authorised deposit-taking institution:
(a) does not incur liability, and is not obliged to make inquiries, in
relation to any transaction concerning an account of a licensee
kept with the institution or with some other financial
institution, and
(b) is, in relation to any such transaction, taken not to have any
knowledge of a right of any person to money credited to such
an account,
unless it would incur such a liability, be obliged to make such
inquiries or be taken to have that knowledge in relation to an account
kept with it in respect of a person absolutely entitled to the money held
in that account.
(2) This section does not relieve an authorised deposit-taking institution
from any liability or obligation that it would have apart from this Act.
(3) An authorised deposit-taking institution at which a licensee keeps an
account for clients' money does not, as regards any liability that the
licensee has to the institution (other than a liability relating to that
account), have a right to any of the money held in that account,
whether by way of set-off, counterclaim, charge or otherwise.
Division 4 Unclaimed trust money
96 Unclaimed trust money held by licensee
(1) A licensee who in the month of January in a year holds in a trust
account kept by the licensee money that was received by the licensee
more than 2 years before that month must furnish to the
Director-General in that month a statement (an unclaimed money
statement) showing particulars of:
(a) the money so held, and
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(b) each person for whom or on whose behalf the money is held,
and
(c) the address last known to the licensee of each of those persons.
(2) A statement under this section is to be in the form approved by the
Director-General.
97 Unclaimed trust money held by former licensee or personal
representative
(1) A former licensee, or the personal representative of a deceased
licensee, who holds money in a trust account kept under this Act must
furnish to the Director-General a statement giving particulars of:
(a) the money held in the trust account as at the date on which the
statement is furnished, and
(b) the names of the persons for whom or on whose behalf the
money is held, and
(c) the address of each of those persons last known to the person
furnishing the statement.
(2) This statement is the first statement that the former licensee or
personal representative is required to furnish and it is to be furnished
within 3 months after the date on which the person ceased to be a
licensee or became the personal representative of the deceased
licensee.
(3) The former licensee or personal representative must furnish a further
statement (an unclaimed money statement) within 14 days after the
period of 12 months has elapsed since the first statement was
furnished.
(4) The further statement is to give particulars of the same matters as the
first statement and also include particulars of any payments made from
the trust account since the date of the first statement.
(5) A statement under this section is to be in the form approved by the
Director-General.
(6) The regulations may exempt money or a class of money from the
operation of this section.
98 Disposal of unclaimed money in trust accounts
(1) When the Director-General receives an unclaimed money statement
under this Division, the Director-General is to:
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(a) send by post to each person for whom or on whose behalf any
money referred to in the statement is held a notice (an
individual notice) in writing addressed to the person at the
person's address shown in the statement stating the particulars
of the moneys held for or on behalf of that person, and
(b) cause notification to be published in the Gazette (a Gazette
notification) stating the particulars of the money held for or on
behalf of each of those persons.
(2) Each individual notice and the Gazette notification is to state that, if
the money is not paid out of the trust account in which it is held within
3 months after the date of publication of the Gazette notice, the person
holding the money will be required to pay it to the Director-General.
(3) At any time after the expiration of that 3 months the Director-General
may, by a notice in writing served personally or by post on the person
by whom the money is held, require that person:
(a) to pay to the Director-General any moneys referred to in the
Gazette notification that have not been previously paid by that
person out of the trust account in which they are held, and
(b) to furnish to the Director-General, within such period as may be
specified in the notice to the person, a statement showing
particulars of any payments made out of the money referred to
in the Gazette notification since the unclaimed money
statement was made.
(4) The Director-General must pay any money received by the
Director-General under this section into the Compensation Fund.
(5) Within 2 months after 31 December in each year, the Director-General
must pay into the Consolidated Fund all money received by the
Director-General and paid into the Compensation Fund under this
section during the period of 12 months ending on that 31 December.
(6) When the Director-General makes a payment into the Consolidated
Fund, the Director-General is to give the Treasurer a statement
containing the following particulars:
(a) the name and last known address of each person for whom or
on whose behalf the money received by the Director-General
was held,
(b) the amount held in respect of each of those persons,
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(c) the date of gazettal of the Gazette notification in respect of that
money,
(d) the name and address of each licensee who furnished an
unclaimed money statement to the Director-General in respect
of that money.
(7) A person who fails to comply with the requirements of any notice
served on the person under this section is guilty of an offence.
Maximum penalty: 50 penalty units.
99 Repayment of unclaimed trust money
(1) The Treasurer must, on application made to the Treasurer by a person
entitled to money paid into the Consolidated Fund under this Division,
pay the money to the person.
(2) If an application for the payment of money to which a person is
entitled is made while the money is held in the Compensation Fund,
the Director-General must pay the money to the person from the
Compensation Fund.
Division 5 Information about trust accounts or transactions
100 Director-General may require information
(1) The Director-General may by notice in writing served on a licensee
require the licensee to furnish to the Director-General in the manner
required by the notice a statement in writing setting out full particulars
as to any of the following:
(a) the name of the trust account on which the licensee operates in
accordance with this Act, the name of the authorised
deposit-taking institution at which the account is current, the
balance of the money standing to the credit of the account as at
a date specified in the notice, and particulars of all cheques
drawn on the account as at such date and not presented and
duly paid,
(b) any money paid by any person to the licensee or received by the
licensee for or on behalf of any person in connection with the
licensee's business as a licensee and, if not still held by the
licensee, the manner and time of its disbursement,
(c) any transaction by or with the licensee as a licensee.
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(2) The licensee must comply with a notice under this section within 7
days after it is served on the licensee.
(3) A notice under this section cannot relate to any transaction by or with
the licensee more than 3 years before the notice is served on the
licensee.
101 Person concerned in transaction may request itemised account
(1) A person directly concerned in any transaction by or with a licensee in
connection with the licensee's business as a licensee may request the
licensee in writing to render to the person in the manner prescribed by
the regulations an itemised account of the transaction.
(2) The licensee must comply with the request within 14 days after the
request is served on the licensee.
(3) A person may not request an itemised account of a transaction that
took place more than 6 months before the making of the request.
102 Offence
(1) A licensee must not fail without reasonable excuse (proof of which lies
on the licensee) to comply with a requirement under this Division.
(2) A licensee must not, in purported compliance with a requirement
under this Division, furnish information that the licensee knows is
false or misleading in a material particular.
Maximum penalty: 100 penalty units.
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Part 8 Records
Division 1 Keeping and inspection of records
103 Licensee's records
(1) In this Act:
licensee's records means:
(a) records required to be kept by a licensee by or under this Act
that are in the possession, custody or control of the licensee,
and
(b) records and documents in the possession, custody or control of
a licensee that relate to any account (whether or not a trust
account) kept by the licensee in connection with the licensee's
business as a licensee or to any transaction by or with the
licensee in connection with the licensee's business as a licensee.
(2) If records or documents that were licensee's records are in the
possession, custody or control of a person as a former licensee, as the
personal representative of a deceased licensee, or as a result of the
transfer of the business of the licensee or otherwise, those records or
documents are still licensee's records for the purposes of this
Division.
(3) An account on which a strata managing agent operates for or on behalf
of an owners corporation, or on which a community managing agent
operates on behalf of an association constituted under the Community
Land Development Act 1989 is taken to be an account kept by the
agent in connection with his or her business as a licensee.
(4) This Part extends to records in the possession, custody or control of a
person even when the records are located outside the State.
104 Licensee to make and keep certain records
(1) A licensee must make the following records:
(a) a record containing full particulars of all transactions by or with
the licensee in connection with his or her business as a licensee,
(b) such other records relating to the licensee's business as a
licensee as may be required by the regulations.
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(2) A record required by this section must be kept for at least 3 years after
it is made.
(3) The record must be kept:
(a) by the licensee at the licensee's registered office (while the
licensee remains a licensee), or
(b) if the licensee ceases to be a licensee, by the former licensee in
his or her possession, custody or control unless the former
licensee authorises some other person to have possession,
custody or control of the record, or
(c) by any other person who obtains possession, custody or control
of the record whether as a result of being the personal
representative of a deceased licensee or by transfer of the
business of the licensee or otherwise.
(4) The regulations may make provision for the manner and form in which
a record required by this section is to be kept.
(5) An entry in a record made under this section and kept at the registered
office of a licensee is presumed, unless the contrary is proved, to have
been made by or with the authority of the licensee.
(6) A person who contravenes a provision of this section is guilty of an
offence.
Maximum penalty: 50 penalty units.
105 Inspection of licensee's records
(1) A licensee's records are at all reasonable times open to inspection by
an authorised officer.
(2) An authorised officer may require a person who has possession,
custody or control of a licensee's records:
(a) to produce the licensee's records for inspection,
(b) to furnish all authorities and orders to financial institutions as
may be reasonably required of the person.
(3) If a licensee is absent from an office or place of business of the
licensee, any employee or agent of the licensee for the time being
having the apparent control or charge of the office or place of business
is taken to have possession, custody or control of the licensee's records
at that office or place of business.
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(4) An authorised officer may take copies of or extracts from, or make
notes from, any licensee's records produced to the authorised officer
under this section and for that purpose may take temporary possession
of those records.
106 Inspection of records of financial institutions
(1) An authorised officer may serve on an authorised deposit-taking
institution with which a licensee has deposited any money in any
account (whether the licensee's own account or a general or separate
trust account) a notice, in a form approved by the Director-General and
signed by the authorised officer:
(a) certifying as to the reason for serving the notice, as provided by
this section, and
(b) requiring the authorised deposit-taking institution to produce to
the authorised officer for inspection the records of the
institution relating to the account.
(2) Each of the following is a reason for serving a notice under this
section:
(a) the licensee cannot be located,
(b) the licensee has left the State,
(c) the licensee or any other person required to do so has failed to
furnish any authority or order on the institution in accordance
with a requirement under this Division,
(d) the licensee has ceased to be a licensee,
(e) the licensee has contravened a provision of Part 7 (Trust
accounts).
(3) An authorised officer may take copies of or extracts from, or make
notes from, any records produced to the authorised officer under this
section and for that purpose may take temporary possession of those
records.
107 Power to require production of licensee's records
(1) An authorised officer may give a written notice to a licensee or to
another person that the officer reasonably believes has possession,
custody or control of the licensee's records requiring the licensee or
person to produce the licensee's records specified in the notice at the
time and place specified in the notice.
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(2) An authorised officer may inspect any record produced in response to
a notice under this section and may take copies of or extracts from, or
make notes from, any such record.
(3) A licensee does not contravene a provision of this Act if the licensee
was unable to comply with the provision because an authorised officer
retained possession of a record or document under this section.
108 Power to take possession of records to be used as evidence
(1) An authorised officer to whom any record is produced under this Part
may take possession of the record if the authorised officer considers it
necessary to do so for the purpose of obtaining evidence or protecting
evidence from destruction.
(2) If an authorised officer takes possession of any record under this
section, the record may be retained by the officer until the completion
of any proceedings (including proceedings on appeal) in which the
record may be evidence.
(3) The person from whom the record was taken must be provided, within
a reasonable time after the record is taken, with a copy of the record
certified by an authorised officer as a true copy.
(4) A copy of a record provided under this section is, as evidence, of equal
validity to the record of which it is certified to be a copy.
109 Additional requirements for managing agents
(1) A strata managing agent or community managing agent must keep a
copy of the following instruments:
(a) an instrument of appointment appointing the agent as strata
managing agent or community managing agent, and
(b) an instrument of delegation delegating to the agent any powers,
authorities, duties or functions of an owners corporation or an
association.
(2) A copy of an instrument of appointment or delegation kept under this
section is a licensee's record for the purposes of this Part.
(3) In this section:
association means a community association, precinct association or
neighbourhood association constituted under section 25 of the
Community Land Development Act 1989.
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owners corporation means an owners corporation constituted under
the Strata Schemes Management Act 1996.
110 Offence
(1) A person must not:
(a) wilfully delay or obstruct an authorised officer in the exercise
of the authorised officer's functions under this Division, or
(b) fail to comply with a requirement under this Division to
produce a record or document in the person's possession,
custody, or control, or
(c) fail to comply with a requirement under this Division to furnish
any authority or order reasonably required of the person under
this Division, or
(d) in purported compliance with a requirement under this Division
produce a document or record knowing it to be false or
misleading in a material particular.
Maximum penalty: 100 penalty units.
(2) A court that convicts a person of an offence under this section may, in
addition to any penalty imposed, order the person to produce the
records in respect of which the offence occurred to the
Director-General or an authorised officer within such time as the court
specifies in the order.
(3) A person who fails to produce a record in accordance with an order of
a court made under this section is guilty of an offence punishable by
a penalty not exceeding 10 penalty units in respect of each day that the
failure continues.
Division 2 Audit of licensee's records
111 Requirement for audit
(1) A person who is a licensee, a former licensee or the personal
representative of a licensee must, within 3 months after the end of the
audit period applicable to the person:
(a) cause the records and documents relating to any money held
during that period in a trust account kept by the person in
accordance with this Act to be audited by a person qualified to
act as an auditor for the purposes of this Division, and
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(b) lodge the auditor's report on the audit with the
Director-General.
(2) The Director-General may in a particular case or class of cases by
order in writing extend the period of 3 months under subsection (1).
(3) The person must retain a copy of the auditor's report on the audit for
a period of three years after the date on which the report was made.
(4) The auditor's report is to be in a form approved by the
Director-General and is to be signed by the auditor.
Maximum penalty:
(a) 100 penalty units in the case of a corporation, or
(b) 50 penalty units in any other case.
112 Audit period
(1) The audit period applicable to a person is the year ending on 30 June
or such other period as the Director-General may fix in respect of the
person under this section.
(2) The Director-General may by order in writing served on a person fix
some other period as the audit period applicable to the person.
(3) Such an order may be made on the application of the person or on the
Director-General's own initiative.
(4) Such an order may be made with such limitations as to time or
circumstances, and subject to such conditions, as the Director-General
considers appropriate.
113 Statutory declaration required when no trust money held or received
A licensee who in the course of the audit period applicable to the
licensee neither received nor held any money for or on behalf of any
other person must, within the period of three months after that day,
make and lodge with the Director-General a statutory declaration to
that effect.
Maximum penalty: 100 penalty units.
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114 Audit obligations of partners
If the provisions of this Division are complied with by any one of the
licensees in a partnership of licensees in relation to the audit of the
records and documents of the partnership, each of those partners is
taken to have complied with those provisions.
115 Qualifications of auditors
(1) A person is qualified to act as an auditor for the purposes of this
Division if the person:
(a) is a registered company auditor within the meaning of the
Corporations Act, or
(b) is a person who has been nominated by the person whose
records and documents are to be audited and who has been
approved by the Director-General by order in writing.
(2) Such a person is not qualified to act as an auditor for the purposes of
this Division if the person:
(a) is or has at any time within 2 years before the last day of the
period in respect of which the audit is to be made, been an
employee or partner of the person whose records or documents
are to be audited, or
(b) is a licensee, or a shareholder in a corporation that is a licensee
and that has not more than twenty shareholders.
116 Duties of auditors
(1) If an auditor in the course of making an audit for the purposes of this
Division discovers that any breach of this Act or the regulations has
been committed, that there is any discrepancy relating to the trust
account to which the audit relates or that the records or documents
concerned are not kept in such a manner as to enable them to be
properly audited, the auditor must:
(a) fully set out the facts so discovered by the auditor in the report
made by the auditor for the purposes of the audit, and
(b) forward a copy of the report to the Director-General.
(2) An auditor, or an assistant of an auditor, appointed to make an audit
for the purposes of this Division must not communicate any matter
which may come to the auditor's knowledge in the course of the audit
to any person except:
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(a) in the course of the auditor's duties as an auditor or assistant of
an auditor, or
(b) in accordance with this section, or
(c) in the like circumstances and to the like extent as an officer of
the Department is permitted under this Act to publish that
information.
(3) An auditor's report under this Division (including under this section)
relating to documents or records of any person, and any statutory
declaration lodged with the Director-General under this Division, are
available in the hands of the Director-General for inspection by an
auditor appointed to carry out for the purposes of this Division any
subsequent audit of the records or documents of that person.
Division 3 Freezing of accounts
117 Definitions
In this Division:
account means:
(a) a trust account in a licensee's name with a financial institution,
or
(b) an account in a licensee's name or in which a licensee has an
interest with a financial institution, or
(c) another account to which trust money is deposited.
financial institution includes an approved deposit-taking institution.
holder of an account means the licensee or other person authorised to
operate on the account.
licensee includes a former licensee and the personal representative of
a deceased licensee.
trust money means money received for or on behalf of any person by
a licensee (whether or not the money is deposited in a trust account
required to be kept by a licensee).
118 Director-General may freeze licensee's accounts in particular cases
(1) A direction under this Division may be given when it appears to the
Director-General that any of the following persons has, or may have,
stolen, misappropriated or misapplied trust money:
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(a) a licensee,
(b) the person in charge of a licensee's business at a place,
(c) an employee of a licensee.
(2) The Director-General may by direction in writing direct that:
(a) if a claim has been made against the Fund concerning the trust
money, all or part of the amount to the credit of a specified
account be paid to the Director-General, or
(b) an amount must not be drawn from a specified account other
than with the Director-General's written approval, or
(c) a specified account may be operated only under specified
conditions.
(3) The direction must be given to each holder of the account and the
financial institution at which the account is kept, and must identify the
account to which it relates.
(4) Any amount paid to the Director-General pursuant to such a direction
must be paid into the Fund.
119 Financial institution must comply with direction
(1) A financial institution to which a direction under this Division is given
(whether or not the direction has been given to anyone else) must not,
while the direction is in force:
(a) pay a cheque or other instrument drawn on the account
concerned unless the cheque or instrument is also signed by the
Director-General or a person authorised by the Director-General
for the purposes of this section, or
(b) give effect to another transaction on the account that is not
authorised because of the direction.
Maximum penalty: 500 penalty units.
(2) The signature of the Director-General or authorised person on a cheque
or other instrument is sufficient evidence of the Director-General's
approval to draw an amount from the account to honour the cheque or
other instrument.
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(3) A manager or principal officer in charge of an office or branch of the
financial institution where an account is kept, or another officer of the
financial institution, must not knowingly permit a contravention of this
section by the financial institution.
Maximum penalty: 100 penalty units or imprisonment for 12 months,
or both.
(4) A person to whom a direction is given does not incur a civil liability
to another person by reason only of complying with the direction.
120 Account not to be operated unless Director-General allows
After a direction under this Division has been given to the holder of an
account, the holder must not (while the direction remains in force) sign
a cheque or other instrument drawn on the account unless the cheque
or other instrument has first been signed by the Director-General or a
person authorised by the Director-General to sign the cheque or
instrument.
Maximum penalty: 100 penalty units or imprisonment for 12 months,
or both.
121 Director-General may operate account
(1) The Director-General or a person authorised in writing by the
Director-General (an authorised person) may operate on an account
that is the subject of a direction under this Division if the holder of the
account refuses to operate the account.
(2) A statutory declaration made by the Director-General or authorised
person to the effect that the account holder is refusing to operate on the
account is sufficient evidence to the licensee's financial institution of
that fact.
122 Withdrawal of direction
(1) A direction remains in force until it is withdrawn.
(2) The Director-General may withdraw a direction under this Division at
any time.
(3) When a direction is withdrawn, the Director-General is to give all
persons who were given the direction a notice that the direction has
been withdrawn. Failure to give notice does not affect the withdrawal
of the direction.
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123 Definitions
In this Part:
associate, in relation to a licensee, has the meaning given to it by
section 124.
expenses, in relation to management, means:
(a) the remuneration payable to the manager, or
(b) the expenses incurred in the course of the management or
receivership, or
(c) the costs of legal proceedings involved in the management or
receivership, or
(d) any reimbursement of the manager or receiver under this Part.
failure to account has the meaning given to it by section 125.
licensee includes:
(a) a firm of licensees, and
(b) a former licensee, and
(c) in relation to anything done or omitted by a licensee--a
deceased licensee and a deceased former licensee, and
(d) except in relation to anything done or omitted by a
licensee--the personal representative of a deceased licensee or
a deceased former licensee.
Operating Account means the Department of Fair Trading Operating
Account or a departmental account prescribed by the regulations for
the purposes of this definition.
property, in relation to a licensee, means:
(a) money or other property received by the licensee on behalf of
another person in the conduct of the licensee's business, or
(b) interest, dividends, income, profits or other property derived
from or acquired with money or other property referred to in
paragraph (a), or
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(c) documents and records of any description relating to anything
referred to in paragraph (a) or (b) or to the licensee's business,
or
(d) any means by which any records referred to in paragraph (c)
that are not written may be reproduced in writing,
and, in relation to a licensee whose business is under management,
includes any property of the business.
receivable property means property of a licensee or an associate of a
licensee that is the subject of an order appointing a receiver, and
includes property that, but for its having being taken, paid or
transferred unlawfully or in breach of trust, would be receivable
property.
receiver means a receiver appointed by the Supreme Court under this
Part.
relevant associate means a licensee's associate of whose property a
receiver has been appointed under this Part.
relevant licensee means a licensee of whose property a receiver has
been appointed.
124 Associates of a licensee
(1) In this Part, a reference to a licensee's associate is a reference to:
(a) a partner of the licensee, or
(b) an employee or agent of the licensee, or
(c) a corporation, or a member of a corporation, partnership,
syndicate or joint venture, in which the licensee or a person
referred to in paragraph (a), (b) or (d) has a beneficial interest,
or
(d) a person who bears a prescribed relationship to the licensee or
to a person referred to in paragraphs (a)(c), or
(e) a corporation that (if a person referred to in paragraphs (b)(d)
is a corporation) is a subsidiary of the person within the
meaning of the Corporations Act, or
(f) a person declared by the regulations to be an associate of the
licensee or belonging to a class of persons so declared.
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(2) For the purposes of subsection (1) (d), a person bears a prescribed
relationship to a licensee or other person if the relationship is that of:
(a) a spouse, or
(b) a de facto partner who is living or has lived with him or her as
his or her wife or husband on a bona fide domestic basis
although not married to him or her, or
(c) a child, grandchild, sibling, parent or grandparent, whether
derived through paragraph (a) or (b) or otherwise, or
(d) a kind prescribed by the regulations for the purposes of this
section.
125 Failure to account
(1) In this Part, failure to account means a failure by a licensee to account
for, pay or deliver money or other valuable property:
(a) that has been received by or entrusted to the licensee, or an
associate of the licensee, in the course of the carrying on of the
licensee's business, and
(b) that is, in the case of money or other valuable property received
by or entrusted to an associate of the licensee, under the direct
or indirect control of the licensee,
being a failure that arises from an act or omission of the licensee or
associate.
(2) The reference in the definition of failure to account in subsection (1)
to money or other valuable property received by or entrusted to a
licensee includes a reference to money or other valuable property that
is received by or entrusted to the licensee as trustee, agent, bailee or
stakeholder, or in any other capacity.
Division 2 Management
126 Appointment of manager
(1) The Director-General may appoint a manager for a licensee's business
in any of the following cases if the Director-General is of the opinion
that it is necessary to make the appointment in order to protect the
interests of other persons:
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(a) the licensee has made a request to the Director-General for the
appointment of a manager, or
(b) the licensee's licence has been cancelled or is under suspension,
or
(c) the Director-General is of the opinion that there has been, or
that there may have been, a failure to account by the licensee,
or
(d) the Director-General is of the opinion that a person is unable to
obtain payment or delivery of property held by the licensee
because the licensee:
(i) is mentally or physically infirm, or
(ii) is bankrupt, has applied to take the benefit of any law
for the relief of bankrupt or insolvent debtors, has
compounded with his or her creditors or has made an
assignment of his or her remuneration for their benefit,
or
(iii) is an inmate within the meaning of the Crimes
(Administration of Sentences) Act 1999, or
(iv) has died, or
(v) has abandoned his or her business.
(2) In the case of a business that is conducted by 2 or more licensees in
partnership, a reference in subsection (1) to a licensee is to be read as
a reference to all of the licensees in the partnership.
(3) The terms of appointment of a manager must specify the remuneration
to which the manager is to be entitled in connection with the
management of the business for which the manager is appointed.
127 Qualifications for appointment as manager
A person is not eligible to be appointed as the manager of a licensee's
business unless the person is a licensee or has such other
qualifications or experience as the Director-General considers
appropriate in a particular case.
128 Powers of manager
(1) The manager of a licensee's business may, subject to the terms of his
or her appointment:
(a) carry out work on behalf of the existing clients of the business,
and
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(b) accept instructions from, and carry out work on behalf of, new
clients, and
(c) dispose of, and otherwise deal with, any property in relation to
the business, and
(d) exercise any right in the nature of a lien over property held by
the manager on behalf of the clients of the business, and
(e) incur such expenses as are reasonably related to the conduct of
the business, and
(f) do all such things as are ancillary to the exercise of the powers
referred to in paragraphs (a)(e),
as if he or she were the licensee to whom the business belongs.
(2) The manager of a licensee's business may not exercise any of the
functions conferred by this section in relation to the affairs of a client
of the business unless the client's consent has been obtained to the
manager's exercise of those functions.
129 Management continues under receivership
(1) The manager of a licensee's business may continue to exercise his or
her functions under this Division even if a receiver is appointed under
Division 3 in respect of the licensee's property.
(2) The manager of a licensee's business for which a receiver is appointed
must comply with any lawful direction given by the receiver in
connection with the conduct of the business.
130 Acts of manager taken to be acts of licensee
(1) An act done by the manager of a licensee's business is, for the
purposes of any proceedings or transaction that relies on that act, taken
to have been done by the licensee.
(2) Nothing in this section subjects a licensee to any personal liability in
relation to any act done by the manager of the licensee's business.
131 Manager may be reimbursed for damages
(1) The Director-General may reimburse a manager for any damages and
costs recovered against the manager, or an employee or agent of the
manager, for anything done or omitted to be done in good faith in the
purported exercise of a function under this Act.
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(2) Reimbursement under this section is to be by way of payment from the
Operating Account.
(3) Neither the manager of a licensee's business nor the Director-General
is liable for any loss incurred by the licensee as a consequence of any
act or omission of the manager or the Director-General in the conduct
of the business if the act or omission was done or omitted in good faith
and in the purported exercise of a function under this Act.
132 Payment of expenses of management
(1) So much of the expenses of the management of a licensee's business
as have not otherwise been paid to the manager out of the receipts of
the business are to be paid to the manager by the Director-General
from the Operating Account.
(2) An amount paid under this section is recoverable by the
Director-General as a debt owed by the relevant licensee.
133 Manager to report to Director-General
(1) The manager of a licensee's business must report to the
Director-General on the management of the business. A report must be
made at such times as the Director-General directs and be in
accordance with any directions given by the Director-General.
(2) A report is to include such information as the Director-General directs.
(3) On the conclusion of the management of a licensee's business, the
manager must, when giving the Director-General his or her final
report, lodge with the Director-General all the manager's records that
relate to the management.
134 Trust money
(1) Part 8 (Records) applies to the accounts kept by a manager in the same
way as it applies to the accounts kept by a licensee.
(2) The trust accounts and controlled money accounts of a business under
management are to be maintained separately from the trust accounts
and controlled money accounts of any other business under
management.
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135 Office accounts
The regulations may make provision with respect to:
(a) the accounts that are to be kept in relation to the income
accrued, and the expenses incurred, by the manager of a
licensee's business in connection with the conduct of the
business, and
(b) the purposes for which money in any such account may be
expended.
136 Termination of management
When a licensee's business ceases to be under management, any
money held by the manager in connection with the business (after
reimbursement of any money paid out of the Operating Account in
connection with the management of the business and after payment of
the expenses of the management of the business) becomes the property
of the licensee.
137 Obstruction of managers
A person must not hinder, obstruct or delay a manager in the exercise
of his or her functions under this Division.
Maximum penalty: 100 penalty units.
Division 3 Receivership
138 Supreme Court may appoint receiver
(1) The Supreme Court may, on the application of the Director-General,
appoint a receiver of all or any of the property of a licensee and may
make the appointment whether or not the licensee has been notified of
the application or is a party to the proceedings.
(2) Such an application may be made by the Director-General only if:
(a) the licensee has made a request to the Director-General for the
appointment of a receiver, or
(b) the licensee's licence has been suspended or cancelled, or
(c) the Director-General is of the opinion that there has been, or
that there may have been, a failure to account by the licensee,
or
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(d) the Director-General is of the opinion that a person is unable to
obtain payment or delivery of property held by the licensee
because the licensee:
(i) is mentally or physically infirm, or
(ii) is bankrupt, has applied to take the benefit of any law
for the relief of bankrupt or insolvent debtors, has
compounded with his or her creditors or has made an
assignment of his or her remuneration for their benefit,
or
(iii) is an inmate within the meaning of the Crimes
(Administration of Sentences) Act 1999, or
(iv) has died, or
(v) has abandoned his or her business,
and the Director-General is of the opinion that it is necessary for the
application to be made in order to protect the interests of other persons.
(3) Nothing in this Division prevents a manager of a licensee's business
from being appointed as a receiver of the licensee's property.
(4) The Director-General may publicly notify the appointment of a
receiver of all or any property of a licensee.
(5) The Supreme Court is not to require the Director-General or any other
person, as a condition of granting an application under this section, to
give any undertaking as to damages or costs.
139 Receivership may extend to property of licensee's associate
If, on the application of a receiver, the Supreme Court is satisfied that
all or any of the property of a licensee's associate should be declared
to be receivable property, the Court may appoint the receiver to be the
receiver of all or any of that property.
140 Court to be closed
(1) Before commencing to hear an application for the appointment of a
receiver, the Supreme Court may order from the precincts of the Court
any person who is not:
(a) an officer of the Court, or
(b) a party, a legal representative of a party or a clerk of such a
legal representative, or
(c) a member of the same firm of licensees as the respondent, or
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(d) a person who is in the course of giving evidence, or
(e) an authorised officer, or
(f) a person permitted by the Court to be present in the interests of
justice.
(2) The Supreme Court may, whether or not at the instance of a party,
prohibit the publication of any report relating to the evidence or other
proceedings or of any order made on the hearing of an application for
the appointment of a receiver.
141 Order to be served
(1) On the appointment of a receiver, the Director-General is to cause a
copy of the order of appointment to be served on:
(a) the relevant licensee or relevant associate, and
(b) any other person on whom the Supreme Court directs a copy of
the order to be served.
(2) The Supreme Court may give directions as to the manner of service
and may dispense with service if it thinks fit.
142 Receiver may take possession of property
(1) A receiver may take possession of receivable property of the relevant
licensee or relevant associate.
(2) A person in possession, or having control, of receivable property must
permit the receiver to take possession of the property if required by the
receiver to do so.
(3) If a person fails to comply with such a requirement, the Supreme Court
may, on the application of the receiver, order the person to deliver the
property to the receiver.
(4) If, on the application of a receiver, the Supreme Court is satisfied that
such an order has not been complied with, the Court:
(a) may order the seizure of any receivable property located on
premises specified in the order, and
(b) may make such further order in the matter as it thinks fit.
(5) An order under subsection (4) (a) authorises:
(a) any police officer, or
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(b) the receiver, or a person authorised by the receiver, together
with any police officer, to enter the premises specified in the
order and to search for, seize and remove any property that
appears to be receivable property.
(6) An application by a receiver under subsection (3) may be made:
(a) in the case of property in the possession, or under the control,
of the relevant licensee or relevant associate--in the name of
the receiver, or
(b) in any other case--in the name of the relevant licensee or
relevant associate.
(7) A receiver must, as soon as possible, return property seized under this
section if it transpires that it is not receivable property.
143 Information about receivable property
(1) A person who has information relating to receivable property, or
property that a receiver believes on reasonable grounds to be
receivable property, must give the information to the receiver if
required by the receiver to do so.
Maximum penalty: 100 penalty units.
(2) A licensee who has any such information may not refuse to comply
with such a requirement merely because the information was obtained
in confidence from a client or former client of the licensee.
(3) A person who complies with a requirement under this section is not,
merely because of that compliance, subject to any liability, claim or
demand.
(4) Information given to a receiver under this section is not admissible as
evidence in any legal proceedings, other than:
(a) proceedings taken by a receiver for the recovery of receivable
property, or
(b) proceedings taken under this Part, or
(c) proceedings taken under Part 7 (Trust accounts) against a
licensee:
(i) if the information was given to the receiver otherwise
than by the licensee, or
(ii) if the information was given to the receiver by the
licensee and is given in evidence in those proceedings
with the licensee's consent.
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144 Stop order on account
(1) A receiver who believes on reasonable grounds that money held in an
account with an authorised deposit-taking institution is receivable
property may serve on the institution concerned an order (in this
section referred to as a stop order) prohibiting operations on the
account by any person other than the receiver or a person authorised
by the receiver.
(2) A stop order may be served by leaving it with the manager, accountant
or other person appearing to be in charge at the branch of the
authorised deposit-taking institution at which the account is kept, but
has no effect unless there is annexed to it a copy of the order
appointing the receiver.
(3) An authorised deposit-taking institution served with a stop order:
(a) must permit the receiver, or a person authorised by the receiver,
to operate on the account to which the order relates, and
(b) must not permit any withdrawal from the account otherwise
than by, or by the authority of, the receiver.
(4) A receiver may transfer money from an account the subject of a stop
order to another account with the authorised deposit-taking institution
in the name of the receiver to be dealt with as receivable property.
(5) The authorised deposit-taking institution has the same obligations and
protections:
(a) in relation to an account the subject of a stop order, and
(b) in relation to an account to which money in such an account is
transferred,
as if the receiver were the relevant licensee or relevant associate.
145 Improper dealing with property
A person must not, with intent to defeat the purposes of this Division:
(a) operate on an account at an authorised deposit-taking
institution, or
(b) destroy or conceal receivable property or property that is likely
to become receivable property, or
(c) destroy or conceal any document that identifies or indicates the
location of receivable property or property that is likely to
become receivable property, or
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(d) move receivable property, or property that is likely to become
receivable property, from one place to another, or
(e) deliver possession of receivable property, or property that is
likely to become receivable property, to another person, or
(f) deliver control of receivable property, or property that is likely
to become receivable property, to another person.
Maximum penalty: 100 penalty units.
146 Recovery of compensation for disposal of receivable property
(1) If receivable property has at any time been taken by, or paid or
transferred to, a person unlawfully or in breach of trust in
circumstances in which:
(a) the person knew or believed at the time that the taking,
payment or transfer was unlawful or in breach of trust, or
(b) there was no consideration for the taking, payment or transfer,
or
(c) there was inadequate consideration for the taking, payment or
transfer, or
(d) the person became indebted or otherwise liable to the relevant
licensee or relevant associate, or to a client of the licensee, as
a result of the taking, payment or transfer,
the receiver may recover from the person, as a debt, the amount taken,
paid or transferred, the amount of the inadequacy, the amount of the
debt or the value of the property taken or transferred, as appropriate.
(2) A person from whom an amount is recovered under subsection (1) is
not liable to any other person in respect of the amount.
(3) If receivable property has at any time been paid or transferred
unlawfully or in breach of trust to, or for the benefit of, a person in
respect of a cause of action the person claims to have against another
person, the receiver:
(a) may recover from the person as a debt the amount of the
payment or the value of the property, or
(b) to the extent to which the full amount or value is not recovered
from the person under paragraph (a)--may take such
proceedings in relation to the claimed cause of action as the
person could have taken.
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(4) If a receiver takes proceedings under subsection (3) (b) in relation to
a cause of action claimed by a person, the receiver may not later take
proceedings under subsection (3) (a) to recover property paid or
transferred to the person in respect of the same cause of action.
(5) If receivable property is used unlawfully or in breach of trust to
discharge a debt or liability of a person, the receiver may recover from
the person as a debt the amount that was required for the discharge of
the debt or liability, reduced by the value of any consideration
provided by the person for the discharge.
(6) Recovery proceedings under this section may be taken in the name of
the receiver or in the name of any other person who, had the receiver
not been appointed, would have been entitled to take the proceedings.
147 Receiver may give certificate
(1) A receiver, or a person authorised by the Director-General, may give
a certificate as to any one or more of the following:
(a) the receipt of property by a licensee or a licensee's associate,
the nature and value of the property received, the date of its
receipt by the licensee or associate and the identity of the
person from whom it was received,
(b) the taking or transfer of property, the nature and value of the
property, the date of its taking or transfer and the identity of the
person by whom it was taken or to whom it was transferred,
(c) the payment of money, the amount of money paid, the date of
the payment and the identity of the person who received the
payment,
(d) the entries made in the records of a licensee or a licensee's
associate and the truth or falsity of the entries,
(e) the use of property unlawfully or in breach of trust.
(2) A certificate under this section is admissible in any proceedings taken
by a receiver under this Division and is evidence of the matters
specified in the certificate.
148 Receiver taken to be beneficially entitled to property
(1) Proceedings taken under this Division in the name of a receiver in
relation to any property may be so taken as if the receiver were
beneficially entitled to the property.
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(2) If receivable property has been taken by, or paid or transferred to, a
person or otherwise used unlawfully or in breach of trust, a receiver
may take proceedings in the name of the receiver as if the receiver
were beneficially entitled to the property at the time the property was
so taken, paid, transferred or used.
149 Receiver may deal with property
(1) A receiver may deal with receivable property in any manner in which
the relevant licensee or relevant associate could, had the receiver not
been appointed, have dealt with it.
(2) A receiver must, as soon as possible after receiving receivable
property, vest the property in the person on whose behalf it was held
by the relevant licensee or relevant associate.
150 Other powers of receiver
(1) A receiver may:
(a) prove, grant, claim or draw a dividend in respect of a debt that
is receivable property, and
(b) take proceedings to recover damages for a tort committed in
relation to receivable property, and
(c) give a receipt for money that is receivable property, and
(d) employ a person to advise or act in relation to receivable
property, in the name of the receiver or in the name of the
relevant licensee or relevant associate.
(2) A receipt given to a person under subsection (1) (c) discharges the
person from any responsibility to see to the application of the money
for which the receipt was given.
(3) A receiver is not, in the exercise of his or her functions as a receiver,
a personal representative of a deceased licensee.
151 Notice to claim receivable property
(1) A receiver may give notice to:
(a) the relevant licensee or relevant associate, or
(b) any other person,
that any claim the licensee, associate or other person has to receivable
property must be submitted to the receiver within 1 month after the
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giving of the notice or within such longer period as is stated in the
notice.
(2) A claim submitted in response to such a notice must state:
(a) full particulars of the property, and
(b) the grounds of the claim.
(3) A receiver may disregard a claim made by a licensee, a licensee's
associate or any other person who has been given a notice under this
section if the claim is not made in accordance with the notice.
(4) The relevant licensee or relevant associate is not entitled:
(a) to enforce a claim to receivable property, or
(b) except against a client--to the benefit of a lien against a
document that is receivable property, unless all other
enforceable claims against the property have been satisfied and
the expenses of the receivership paid.
152 Lien on receivable property
(1) If a licensee claims a lien on receivable property for an amount in
respect of remuneration, the receiver may serve on the licensee a
written notice requiring the licensee to provide to the receiver, within
a specified period of not less than 1 month:
(a) particulars sufficient to identify the property, and
(b) a detailed itemised account relating to the amount in respect of
which each lien is claimed.
(2) If the licensee requests the receiver in writing to allow access to such
records as may be reasonably necessary to enable the preparation of
the itemised account, the time allowed for providing the itemised
account does not begin to run until access to those records is provided.
(3) If a requirement of a notice under this section is not complied with, the
receiver may disregard the claim in dealing with the property claimed
to be subject to a lien.
(4) In this section:
remuneration means remuneration by way of commission, fee, gain
or reward for services performed by a licensee in his or her capacity as
a licensee and includes any sum as reimbursement for expenses or
charges incurred in connection with services performed by a licensee
in his or her capacity as a licensee.
Page 97
Clause 153 Property, Stock and Business Agents Bill 2002
Part 9 Management and receivership
Division 3 Receivership
153 Examination by receiver
(1) The Supreme Court may, on the application of a receiver, make such
order as it thinks fit for the examination by the receiver of a licensee
or other person in relation to receivable property.
(2) On an examination under this section:
(a) the licensee or other person may be represented by a solicitor or
barrister, and
(b) the Supreme Court may put, or allow to be put, to the licensee
or other person such questions as it thinks fit.
(3) The licensee or other person may be examined on oath or affirmation.
(4) The licensee or other person is compellable to answer all questions
asked in the course of the examination, including any question to
which an objection is made on the ground that the answer would tend
to incriminate the licensee or other person.
(5) An answer given by a licensee or other person to a question to which
such an objection is made is not admissible in any criminal
proceedings other than proceedings relating to the falsity of the
answer.
154 Property not dealt with by receiver
(1) If receivable property under the control of the receiver has not been
dealt with in accordance with this Division, the receiver must cause
notice of that fact to be given to the Director-General and:
(a) if the Director-General so requires within 1 month after the
notice is given--must transfer and deliver the property to the
Director-General, or
(b) if no such requirement is made--must transfer and deliver the
property to the relevant licensee or relevant associate.
(2) If property other than money is transferred or delivered to the
Director-General under this section, the Director-General:
(a) must deal with it as the Supreme Court directs, and
(b) if the property is sold--must treat the proceeds as money paid
to the Director-General under this section.
(3) The Director-General must apply money paid to the Director-General
under this section:
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Property, Stock and Business Agents Bill 2002 Clause 154
Management and receivership Part 9
Receivership Division 3
(a) firstly--towards the satisfaction of wholly or partly unsatisfied
claims against the relevant licensee, and
(b) secondly--in payment of the expenses of the receivership.
(4) Any money paid to the Director-General under this section that is
surplus to the requirements of this section must be paid to the relevant
licensee or relevant associate.
155 Investment of money by receiver
(1) A receiver may invest receivable property in any manner in which
trustees are authorised by the Trustee Act 1925 to invest trust funds.
(2) Income received from an investment under this section, and any profit
made on the sale of such an investment, is receivable property.
156 Receiver may be reimbursed for damages
(1) The Director-General may reimburse a receiver for any damages or
costs recovered against the receiver, or an employee or agent of the
receiver, for anything done or omitted to be done in good faith in the
purported exercise of the receiver's functions.
(2) Reimbursement under this section is to be by way of payment from the
Operating Account.
157 Payment of expenses of receivership
(1) So much of the expenses of receivership as have not otherwise been
paid to the receiver are to be paid to the receiver by the
Director-General from the Operating Account.
(2) An amount paid under this section may be recovered by the
Director-General from the relevant licensee as a debt.
(3) If the Director-General and a receiver fail to agree on the remuneration
to be paid to the receiver, the Supreme Court may, on the application
of the Director-General or the receiver, determine the amount to be
paid.
(4) The Supreme Court, on the application of the relevant licensee:
(a) may re-open any agreement between the Director-General and
a receiver for remuneration of the receiver, and
(b) may determine the amount to be paid.
Page 99
Clause 158 Property, Stock and Business Agents Bill 2002
Part 9 Management and receivership
Division 3 Receivership
158 Supreme Court may review expenses of receivership
(1) If, on the application of the relevant licensee, the Supreme Court is
satisfied that the expenses of the receivership are excessive, the
Supreme Court may order the taking of accounts between the
Director-General and the receiver.
(2) After the taking of accounts, the Supreme Court:
(a) may relieve the relevant licensee from payment of any amount
in excess of that determined by the Supreme Court to be fairly
payable, or
(b) if the receiver has been paid, or allowed on account, an amount
that includes such an excess--may order the receiver to repay
the excess.
159 Receivable property not to be attached
The receivable property of a relevant licensee or relevant associate is
not liable to be taken in execution of any judgment, order or other
process of any court or tribunal.
160 Applications for directions by receiver, licensee etc
(1) A receiver, a licensee or a licensee's associate who holds receivable
property, or a person who claims receivable property so held, may
apply to the Supreme Court for directions as to the performance of the
receiver's functions.
(2) On an application under this section, the Supreme Court may give
such directions as it thinks fit.
161 Supreme Court may give general directions to receiver
(1) The Supreme Court:
(a) may authorise a receiver to do such things in the exercise of the
receiver's functions as the Supreme Court considers
appropriate, and
(b) may give directions for the exercise of any such authority.
(2) A receiver must exercise any authority so conferred in accordance with
any direction so given.
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Property, Stock and Business Agents Bill 2002 Clause 162
Management and receivership Part 9
Receivership Division 3
162 Receiver to report to Supreme Court and Director-General
(1) A receiver must, at such times and in respect of such periods as the
Supreme Court directs, submit reports on the receivership to the
Supreme Court and the Director-General.
(2) A report is to deal with such matters as the Supreme Court directs and
with such other matters as the receiver considers appropriate to include
in the report.
(3) On the conclusion of a receivership, the receiver must lodge with the
Supreme Court all of the receiver's records that relate to the
receivership.
(4) Unless the Supreme Court orders their destruction, records lodged
under this section are to remain in the custody of the Court.
163 Termination of appointment of receiver
(1) The Supreme Court:
(a) may terminate the appointment of a receiver, and
(b) may, if it thinks fit, appoint a new receiver either immediately
or at any time within the next 14 days.
(2) The former receiver must transfer or deliver the receivable property:
(a) if a new receiver is appointed--to the new receiver in
accordance with any directions given by the Supreme Court, or
(b) if a new receiver is not appointed and if the relevant licensee or
relevant associate so requires by notice in writing served on the
receiver--to the licensee or associate.
Maximum penalty: 50 penalty units.
(3) The receivable property must, in accordance with any directions given
by the Supreme Court, be transferred or delivered as soon as possible
after the former receiver's appointment is terminated.
(4) A former receiver is not required to comply with the requirements of
this section unless:
(a) the expenses of the receivership have been paid to the
Director-General, or
(b) the Director-General otherwise directs in relation to those
expenses.
Page 101
Clause 163 Property, Stock and Business Agents Bill 2002
Part 9 Management and receivership
Division 3 Receivership
(5) Subject to any direction given by the Supreme Court, a former receiver
may transfer or deliver receivable property to the relevant licensee or
relevant associate without having been given a notice under subsection
(2) (b).
164 Obstruction of receivers
A person must not hinder, obstruct or delay a receiver in the exercise
of his or her functions under this Division.
Maximum penalty: 100 penalty units.
Page 102
Property, Stock and Business Agents Bill 2002 Clause 165
Compensation Fund Part 10
Establishment and management Division 1
Part 10 Compensation Fund
Division 1 Establishment and management
165 Compensation Fund
The Director-General is to cause to be established and maintained in
the accounting records of the Department a fund, called the Property
Services Compensation Fund.
166 Money payable to Compensation Fund
The Compensation Fund is to consist of:
(a) any amounts paid by licensees by way of levy under this Act,
and
(b) any amounts required or permitted to be paid to the credit of the
Compensation Fund, whether by this Act or any other Act, and
(c) any amounts payable to the Compensation Fund from the
Statutory Interest Account, and
(d) income from the investment of the Compensation Fund.
167 Application of money in Compensation Fund
(1) Money in the Compensation Fund may be applied for any purpose for
which it is required or permitted to be applied by or under this or any
other Act.
(2) The Director-General may apply money held in the Compensation
Fund (in such order as the Director-General decides) for all or any of
the following purposes:
(a) satisfying claims (including costs) established against the
Compensation Fund in accordance with this or any other Act,
(b) meeting legal expenses incurred by the Director-General in
connection with claims against the Compensation Fund,
(c) meeting expenses incurred by the Director-General in or in
relation to appearances before a court or tribunal with respect
to licences under this Act or the Conveyancers Licensing
Act 1995,
(d) meeting the costs of administering the Compensation Fund,
Page 103
Clause 167 Property, Stock and Business Agents Bill 2002
Part 10 Compensation Fund
Division 1 Establishment and management
(e) investing in schemes that relate to the provision of residential
accommodation or, subject to such terms and conditions as may
be prescribed by the regulations, in loans to authorised
deposit-taking institutions.
(3) The Treasurer may determine whether any such money is to be
invested in any such scheme or loan and the amount to be invested in
a scheme or loan.
Division 2 Contributions and levies
168 Contributions
(1) A contribution to the Compensation Fund is to be paid by an applicant
for a licence at the time the application is made.
(2) The amount of the contribution is the amount prescribed by the
regulations. The regulations may prescribe different amounts of
contributions for different kinds of licences.
(3) The regulations may provide for a single contribution to be paid if a
person applies for more than one kind of licence.
(4) Contributions under this section are in addition to any fees and levies
payable under this Act.
(5) If a licence is not granted pursuant to an application, any contribution
to the Compensation Fund paid by the applicant is to be refunded.
169 Levies
(1) If the Director-General is at any time of the opinion that the
Compensation Fund is likely to be insufficient to meet the liabilities to
which it is subject, the Director-General may, with the approval of the
Minister, impose a levy on each licensee.
(2) A levy is payable to the Director-General at the time, and in the
manner, fixed by the Director-General.
(3) The Director-General may, in any special case, allow time for the
payment of the whole or part of any levy.
(4) If, after being given the notice prescribed by the regulations, a licensee
fails to pay a levy in accordance with this section, the
Director-General may suspend the licence held by the licensee while
the failure continues.
Page 104
Property, Stock and Business Agents Bill 2002 Clause 170
Compensation Fund Part 10
Claims Division 3
Division 3 Claims
170 Definitions
In this Division:
associate of a licensee means:
(a) an employee or agent of the licensee, or
(b) a person who has the apparent control or charge for the time
being of the business of the licensee or of any office at which
that business is carried on.
failure to account has the meaning given in section 171.
pecuniary loss from a failure to account includes:
(a) all costs (including the legal costs and disbursements of making
and proving a claim), charges and expenses that a claimant has
suffered or incurred as a direct consequence of the failure to
account, and
(b) all interest on money or other valuable property that a claimant
would have received but for the failure to account for the
money or other property, with that interest calculated to the date
on which the Director-General determines the claimant's claim
or a judgment is recovered against the Director-General in
relation to the Compensation Fund in respect of that money or
other property.
171 Meaning of "failure to account"
(1) In this Division, a reference to a failure to account is a reference to a
failure by a licensee to account for money or other valuable property
entrusted to the licensee or an associate of the licensee in the course of
the carrying on of the licensee's business as a licensee.
(2) This Division applies only to a failure to account that arises from an
act or omission of the licensee or associate.
(3) For the purposes of this Division, it does not matter that the failure to
account occurred after the licensee ceased to be licensed, if the money
or other valuable property concerned was entrusted to the licensee (or
an associate of the licensee) before the licensee ceased to be licensed.
Page 105
Clause 171 Property, Stock and Business Agents Bill 2002
Part 10 Compensation Fund
Division 3 Claims
(4) This Division applies whether the failure to account, or the act or
omission, took place before or after the commencement of this
Division.
172 Division applies when person reasonably believed to be a licensee
(1) This Division extends to a case where a person entrusts money or other
valuable property to another person reasonably believing that the other
person is a licensee or an associate of a licensee and that the money or
other valuable property is entrusted in the course of the carrying on of
the other person's business as licensee.
(2) In such a case, the person believed to be a licensee is taken to be a
licensee for the purposes of the operation of this Division and the
money or other valuable property is taken to have been entrusted in the
course of the carrying on of the licensee's business as licensee.
173 Claims against Compensation Fund
(1) The Compensation Fund is held, and is to be applied, for the purpose
of compensating persons who suffer pecuniary loss because of a failure
to account.
(2) A person who claims to have suffered a pecuniary loss because of a
failure to account may make a claim against the Compensation Fund,
but only if the claim is made in writing to the Director-General within:
(a) a period of 12 months after the person has become aware of the
failure to account, or
(b) a period of 2 years after the date of the failure to account,
whichever period ends first.
(3) However, a claim caused by a failure of a licensee (or an employee or
agent of a licensee) to lodge a rental bond with the Rental Bond Board
may also be made at any time within one year after the termination of
the tenancy agreement.
(4) A licensee does not have a claim against the Compensation Fund in
respect of a pecuniary loss suffered in connection with the licensee's
business as a licensee because of a failure to account.
(5) Subject to this section, the Director-General may receive and allow, in
whole or in part, any claim against the Compensation Fund at any time
after the relevant failure to account arose.
Page 106
Property, Stock and Business Agents Bill 2002 Clause 173
Compensation Fund Part 10
Claims Division 3
(6) The Director-General may disallow any claim, in whole or in part, in
appropriate cases. In particular the Director-General may disallow a
claim to the extent that pecuniary loss was suffered as a result of a
failure to mitigate loss or was occasioned by unreasonable delay in
making a claim.
174 Legal proceedings
(1) A person cannot, without the leave of the Director-General, commence
any proceedings in relation to the Compensation Fund unless the
person has made a claim and the Director-General has disallowed the
person's claim.
(2) A person cannot recover from the Compensation Fund by way of any
such proceedings an amount greater than the amount of pecuniary loss
suffered by the person, after deducting from the total amount of the
pecuniary loss:
(a) the amount or value of all money or other benefits received or
recovered from any source (other than the Compensation Fund)
in reduction of the pecuniary loss, and
(b) any such amount or value that, in the opinion of the
Director-General, might have been received or recovered but
for the person's neglect or default.
(3) Any proceedings in relation to any claim against the Compensation
Fund are to be as for a debt due by the Crown and are to be brought in
a court of competent jurisdiction. The proceedings do not lie against
the Director-General.
(4) In those proceedings:
(a) all defences that would have been available to the licensee in
relation to whom the claim arose are available to the Crown,
and
(b) all questions of costs are in the discretion of the court or, where
the proceedings are tried with a jury, the judge presiding at the
trial.
(5) Any order for the payment of costs made by a Local Court operates as
a judgment debt under the Local Courts (Civil Claims) Act 1970 and
is enforceable as such under that Act.
(6) No proceedings can be brought against the Crown in relation to a
claim against the Compensation Fund after the end of:
Page 107
Clause 174 Property, Stock and Business Agents Bill 2002
Part 10 Compensation Fund
Division 3 Claims
(a) a period of 6 months after the claimant has been notified that
the claim has been disallowed, or
(b) such longer period as the court may permit, on sufficient cause
being shown and on such terms as it thinks fit.
175 Limits on amounts recoverable
(1) The amount that a person may recover from the Compensation Fund
cannot, in any case or in any event, exceed $500,000 or, if another
amount is prescribed by the regulations, the prescribed amount.
(2) The aggregate sum that may be applied in compensating all persons
who suffer or incur pecuniary loss because of a failure to account, or
of related failures to account, cannot exceed $2,000,000 or, if another
amount is prescribed by the regulations, the prescribed amount.
(3) The Director-General may disregard subsection (2) in the case of
successive failures to account by a licensee, to the extent that the
Director-General is satisfied that the failures are not connected.
(4) If the total amount of claims or judgments (or both) exceeds the
aggregate sum provided for by this section, the Director-General has
an unfettered discretion to determine the division and allocation of the
available money among the various parties (whether or not to the
exclusion of any one or more of them).
176 Advertisements
(1) The Director-General may cause to be published a notice relating to a
defaulting licensee and fixing a date by which claims must be made
under this Part.
(2) The notice is to be published in a newspaper circulating in the district
in which the defaulting licensee is or was carrying on business, and
also in a newspaper circulating in Sydney. One newspaper may satisfy
both requirements.
(3) Any claim not made in writing on or before the date fixed by the
notice is barred, unless the Director-General otherwise determines.
(4) After that date, the Director-General may distribute compensation in
accordance with this Part, having regard only to judgments obtained
and claims allowed against the Compensation Fund.
Page 108
Property, Stock and Business Agents Bill 2002 Clause 177
Compensation Fund Part 10
Claims Division 3
177 Subrogation
(1) On payment out of the Compensation Fund in settlement in whole or
in part of a claim under this Act, the Crown is subrogated, to the
extent of the payment, to all the rights and remedies of the claimant
against the licensee, or the former licensee, in relation to whom the
claim arose, or any other person.
(2) A certificate given by the Director-General certifying that a specified
amount has been paid out of the Compensation Fund in settlement in
whole or in part of a claim under this Act is evidence of the matter
certified.
(3) In the enforcement of any rights or remedies to which the
Director-General is subrogated under this section for the purpose of
recovering an amount paid out of the Compensation Fund, the amount
is taken to be a debt due to the Crown and may be recovered
accordingly.
(4) The Director-General may exercise the rights and remedies to which
the Director-General is subrogated under this section in the name of
the Director-General or in the name of the claimant concerned.
178 Recovery of payments from directors
(1) This section applies when the payment of an amount out of the
Compensation Fund has been made as a consequence of the act or
omission of a corporation (including the payment of any amount to an
administrator of the affairs and property of the corporation).
(2) The Director-General may recover, jointly or severally, from any
person who was a director or persons who were directors of the
corporation at the time of the relevant act or omission, the amount of
the payment as a debt in any court of competent jurisdiction.
(3) In any proceedings for the recovery of an amount under this section,
judgment is not to be entered against a defendant who proves that the
act or omission occurred without the defendant's express or implied
authority or consent.
(4) Proceedings may be brought for the recovery of an amount under this
section whether or not the person against whom the proceedings are
brought, or any other person, has been convicted of an offence in
respect of the act or omission as a consequence of which the amount
was paid.
Page 109
Clause 178 Property, Stock and Business Agents Bill 2002
Part 10 Compensation Fund
Division 3 Claims
(5) When this section renders a person or persons liable to pay an amount
as a consequence of an act or omission of a corporation, the payment
by the person or either or any of those persons of the whole or any part
of the amount does not render the corporation liable to the person
concerned in respect of the amount so paid.
179 Production of documents
(1) The Director-General may, at any time and from time to time, require
the production of documents necessary to support any claim under this
Act, or available for that purpose, or for the purpose of exercising
functions in respect of a defaulting licensee.
(2) The Director-General may reject a claim if documents are not
produced as required.
180 Satisfaction of claims and judgments
(1) A claim or judgment against the Compensation Fund can only be
satisfied to the extent of money in the Compensation Fund (either then
or at a later time). No other money or property (whether of the Crown
or otherwise) is available for that purpose.
(2) If a number of claims or judgments (or both) against the Compensation
Fund cannot be satisfied because of an insufficiency of money in the
Compensation Fund, the Director-General has an unfettered discretion
to determine the division and allocation of the available money among
the various parties (whether or not to the exclusion of any one or more
of them).
Division 4 Examination of accounts of licensees and former
licensees
181 Definitions
In this Division:
accounts examiner means a person appointed as an accounts
examiner under this Division.
associate has the same meaning as in Division 3.
Page 110
Property, Stock and Business Agents Bill 2002 Clause 182
Compensation Fund Part 10
Examination of accounts of licensees and former licensees Division 4
182 Appointment of accounts examiner to examine licensee's accounts
(1) For the purpose of safeguarding the Compensation Fund in relation to
the affairs of a licensee, the Director-General may, at any time and
from time to time, appoint an appropriately qualified person as an
accounts examiner to examine the accounts kept by the licensee in
connection with the licensee's business.
(2) A person is appropriately qualified for appointment if the person has
such qualifications or experience as in the opinion of the
Director-General are appropriate for the purpose of exercising
functions under this Division.
(3) The appointment of an accounts examiner is to be by instrument in
writing.
(4) The Director-General may publicly notify the appointment of an
accounts examiner in relation to the accounts of a licensee.
183 Accounts examiner to report on accounts
(1) An accounts examiner is to furnish to the Director-General a
confidential report about the accounts concerned, indicating whether
there is any irregularity or alleged or suspected irregularity in the
accounts or any other matter that in the person's opinion should, in the
interests of the Compensation Fund, be further investigated.
(2) A copy of the report is required to be sent by post by the
Director-General to the licensee as soon as practicable.
184 Powers of accounts examiner
(1) On production by an accounts examiner of his or her instrument of
appointment, the accounts examiner may require the licensee (or, in
the absence of the licensee, an associate of the licensee) to do any one
or more of the following things:
(a) produce to the accounts examiner or any assistant of the
accounts examiner all records relating to the business of the
licensee (including all records made and kept by the licensee
under this Act) and (in the case of records stored electronically)
produce any such record in written form,
(b) give the accounts examiner or any assistant of the accounts
examiner all information relating to the records required to be
produced under this section,
Page 111
Clause 184 Property, Stock and Business Agents Bill 2002
Part 10 Compensation Fund
Division 4 Examination of accounts of licensees and former licensees
(c) produce to the accounts examiner or any assistant of the
accounts examiner all authorities and orders to financial
institutions and other documents that may be reasonably
required.
(2) The licensee or associate is guilty of an offence if the licensee or
associate, without lawful justification or excuse (proof of which lies on
the licensee or associate):
(a) refuses or fails to comply with a requirement under this section,
or
(b) otherwise hinders, obstructs or delays an accounts examiner in
the exercise or performance of the accounts examiner's
functions under this section.
Maximum penalty: 50 penalty units.
185 Confidentiality
(1) An accounts examiner must not communicate to any person (other
than a partner, employer, employee or assistant of the accounts
examiner):
(a) the fact of the accounts examiner's appointment under this
Division, or
(b) any matter that comes to the accounts examiner's knowledge in
the course of the examination,
except in the course of preparing and furnishing the report to the
Director-General or in the same circumstances as information obtained
in connection with the administration or execution of this Act can be
disclosed under section 219.
(2) A partner, employer, employee or assistant (the colleague) of the
accounts examiner must not communicate to any person (other than
the accounts examiner or a partner, employer, employee or assistant of
the accounts examiner):
(a) the fact of the accounts examiner's appointment under this
Division, or
Page 112
Property, Stock and Business Agents Bill 2002 Clause 185
Compensation Fund Part 10
Examination of accounts of licensees and former licensees Division 4
(b) any matter that comes to the colleague's knowledge in the
course of the examination,
except in the course of the preparing and furnishing of the report to the
Director-General or in the same circumstances as information obtained
in connection with the administration or execution of this Act can be
disclosed under section 219.
(3) A person who contravenes this section is guilty of an offence.
Maximum penalty: 50 penalty units.
186 Former licensees
This Division extends, with any necessary adaptations, to a former
licensee, so that a reference in this Division to a licensee includes a
reference to a former licensee and any person who has the possession,
custody or control of a written record relating to a former licensee and
preserved in accordance with this Act.
Page 113
Clause 187 Property, Stock and Business Agents Bill 2002
Part 11 Property Services Statutory Interest Account
Part 11 Property Services Statutory Interest Account
187 Statutory Interest Account
The Director-General is to cause to be established and maintained in
the accounting records of the Department an account called the
Property Services Statutory Interest Account.
188 Money payable to Statutory Interest Account
The Statutory Interest Account is to consist of:
(a) any money required or permitted to be paid to the credit of the
Statutory Interest Account, whether by this Act or any other
Act, and
(b) income from the investment of the Statutory Interest Account.
189 Application of money in Statutory Interest Account
(1) Money in the Statutory Interest Account may be applied for any
purpose for which it is required or permitted to be applied by or under
this or any other Act.
(2) The Director-General may, with the consent of the Minister, apply
money held in the Statutory Interest Account for all or any of the
following purposes:
(a) supplementing the Compensation Fund by such amount as may
be needed to enable the current liabilities of the fund to be met,
(b) providing grants or loans for providing or undertaking
education or research programs relating to the property services
industry (as defined in section 25I of the Fair Trading
Act 1987) and approved by the Minister,
(c) providing money for the establishment or administration of
rental advisory services,
(d) meeting the costs of administering this Act, the Conveyancers
Licensing Act 1995, the Valuers Registration Act 1975 and any
other Act prescribed by the regulations for the purposes of this
paragraph (or the prescribed provisions of any other Act),
(e) meeting the costs of the administration of the Property Services
Advisory Council,
Page 114
Property, Stock and Business Agents Bill 2002 Clause 189
Property Services Statutory Interest Account Part 11
(f) meeting the costs of operating a scheme or schemes for
resolving disputes arising between consumers and providers of
property services,
(g) investing in schemes that relate to the provision of residential
accommodation or, subject to such terms and conditions as may
be prescribed by the regulations, in loans to authorised
deposit-taking institutions.
(3) The Treasurer may determine whether any such money is to be
invested in any such scheme or loan and the amount to be invested in
a scheme or loan.
(4) In this section:
property services means services provided in the property services
industry as defined in section 25I of the Fair Trading Act 1987.
190 Application of money for purposes of certain Acts
(1) The following amounts are also payable from the Statutory Interest
Account:
(a) such contributions towards the costs, charges and expenses of
administration of the Landlord and Tenant (Rental Bonds) Act
1977, the Residential Tenancies Act 1987 and the Residential
Parks Act 1998 as may be agreed from time to time by the
Minister and the Ministers administering the Landlord and
Tenant (Rental Bonds) Act 1977, the Residential Tenancies Act
1987 and the Residential Parks Act 1998,
(b) such contributions towards half the costs and expenses incurred
in the administration of the Consumer, Trader and Tenancy
Tribunal Act 2001 as are agreed annually by the Minister, the
Minister administering the Landlord and Tenant (Rental Bonds)
Act 1977 and the Minister administering the Consumer, Trader
and Tenancy Tribunal Act 2001, but only to the extent to which
those costs and expenses relate to the exercise of the Consumer,
Trader and Tenancy Tribunal's jurisdiction in relation to
matters arising under the following Acts:
(i) the Community Land Management Act 1989,
(ii) the Residential Parks Act 1998,
(iii) the Residential Tenancies Act 1987,
(iv) the Retirement Villages Act 1999,
(v) the Strata Schemes Management Act 1996.
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Clause 190 Property, Stock and Business Agents Bill 2002
Part 11 Property Services Statutory Interest Account
(c) such contributions towards the costs, charges and expenses of
the administration of the Retirement Villages Act 1999 as may
be authorised by the Director-General with the consent of the
Minister,
(d) such contributions as may be agreed by the Minister and the
Minister administering the Fair Trading Act 1987 towards the
costs, charges and expenses of the administration of that Act,
(e) such contributions as may be agreed by the Minister and the
Minister administering the Strata Schemes Management
Act 1996 and Community Land Management Act 1989 towards
the costs, charges and expenses of the administration of those
Acts,
(f) such additional contributions for the purposes set out in
paragraphs (a)(e) as the Ministers referred to in those
paragraphs may at any time agree.
(2) Contributions referred to in this section are to be paid in the manner
determined by the Treasurer.
Page 116
Property, Stock and Business Agents Bill 2002 Clause 191
Complaints and disciplinary action Part 12
Part 12 Complaints and disciplinary action
191 Grounds for disciplinary action
Disciplinary action under this Part can be taken against a person who
is or was the holder of a licence or certificate of registration on any one
or more of the following grounds:
(a) the person has contravened a provision of this Act or any other
Act administered by the Minister, or the regulations under any
such Act, whether or not the person has been prosecuted or
convicted of an offence in respect of the contravention,
(b) the person has contravened a condition of the licence or
certificate of registration,
(c) the person has, in the course of carrying on business or
exercising functions under the licence or certificate of
registration, acted unlawfully, improperly, unfairly or
incompetently,
(d) the person is a disqualified person or is otherwise not eligible
under section 14 to hold a licence or certificate of registration,
(e) the person is not a fit and proper person to be involved in the
direction, management or conduct of the business of a licensee,
(f) the person has failed to pay any part of a contribution or levy
that is due and payable under Part 10 (Compensation Fund),
(g) the person has breached an undertaking given by the person to
the Director-General under this Act or the Fair Trading
Act 1987, in respect of the person's conduct of business or
exercise of functions under the licence or certificate of
registration,
(h) the person has failed to comply with a direction given to the
person by the Director-General pursuant to the taking of
disciplinary action under this Part,
(i) the person has failed to pay a monetary penalty imposed on the
person by the Director-General pursuant to the taking of
disciplinary action under this Part,
(j) the issue of the person's licence or certificate of registration was
obtained by fraud or mistake,
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Clause 191 Property, Stock and Business Agents Bill 2002
Part 12 Complaints and disciplinary action
(k) grounds specified in the regulations as grounds for the taking of
disciplinary action against a person under this Act.
192 Disciplinary action
(1) Each of the following actions is disciplinary action that the
Director-General can take against a person under this Act:
(a) caution or reprimand the person,
(b) give a direction to the person requiring the person to give a
specified undertaking to the Director-General as to the manner
in which the person will conduct business or exercise functions
under a licence or certificate of registration held by the person,
(c) give a direction to the person requiring the person to take
specified action within a specified time in connection with the
conduct of business or the exercise of functions under a licence
or certificate of registration,
(d) impose a monetary penalty on the person of an amount not
exceeding 100 penalty units in the case of an individual or 200
penalty units in the case of a corporation,
(e) impose a condition on the person's licence or certificate of
registration,
(f) suspend the person's licence or certificate of registration for a
period that does not exceed the unexpired term of the licence or
certificate of registration,
(g) cancel the person's licence or certificate of registration,
(h) declare the person to be a disqualified person for the purposes
of this Act, either permanently or for a specified period,
(i) disqualify the person from being involved in the direction,
management or conduct of the business of a licensee.
(2) A power conferred by this Act to take disciplinary action against a
person is a power to take any one or more of the actions that constitute
disciplinary action.
(3) When a licence or certificate of registration is suspended, it is taken not
to be in force except for such provisions of this Act or the regulations
as the regulations may prescribe as provisions that remain applicable
to a suspended licence or certificate of registration.
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Property, Stock and Business Agents Bill 2002 Clause 193
Complaints and disciplinary action Part 12
193 Decision to take no further action
The Director-General may at any stage of a matter that is the subject
of consideration by the Director-General under this Part determine to
take no further action in respect of the matter, whether or not the
matter is the subject of a complaint or a show cause notice and
whether or not the Director-General determines that there are grounds
for taking disciplinary action in connection with the matter.
194 Complaints
(1) Any person may make a complaint to the Director-General setting out
matters that are alleged to constitute grounds for taking disciplinary
action against a person under this Act.
(2) Action can be taken under this Part whether or not a complaint has
been made.
195 Show cause notice
(1) The Director-General may serve a show cause notice on a person if the
Director-General is of the opinion that there is reasonable cause to
believe that there are grounds for taking disciplinary action against the
person.
(2) A show cause notice is a notice requiring a person to show cause why
disciplinary action should not be taken against the person under this
Act on the grounds specified in the notice.
(3) A show cause notice is to be in writing and is to specify a period of
not less than 14 days after service of the notice as the period that the
person to whom the notice is directed has to show cause as required by
the notice.
(4) The person on whom a show cause notice is served may within the
period allowed by the notice make oral or written submissions to the
Director-General in respect of the matters to which the notice relates.
In the case of a corporation, submissions may be made by a director or
officer of the corporation.
Page 119
Clause 196 Property, Stock and Business Agents Bill 2002
Part 12 Complaints and disciplinary action
196 Power to suspend licence or certificate of registration when show cause
notice served
(1) When a show cause notice is served on a person, the Director-General
may by notice in writing to the person suspend the person's licence or
certificate of registration pending a determination by the
Director-General of whether to take disciplinary action under this Act
against the person.
(2) The Director-General may only suspend a licence or certificate of
registration under this section if satisfied that the grounds for
disciplinary action specified in the show cause notice would, if
established, justify the suspension or cancellation of the licence or
certificate of registration.
(3) Such a suspension may not be imposed for a period of more than 60
days after the show cause notice is served.
(4) The Director-General is not required to afford a person an opportunity
to be heard before taking action against the person under this section.
(5) The Director-General can revoke a suspension under this section at any
time by notice in writing to the suspended person.
(6) This section does not limit or otherwise affect any power to suspend
a licence or certificate of registration under section 64A of the Fair
Trading Act 1987.
197 Inquiries and investigation
The Director-General may conduct inquiries and make investigations
in relation to the matters to which a show cause notice relates and the
submissions, if any, made by or on behalf of the person to whom the
show cause notice relates in relation to those matters, as the
Director-General thinks fit.
198 Taking of disciplinary action
(1) If the Director-General is satisfied that there are grounds for taking
disciplinary action under this Act against a person on whom a show
cause notice has been served, the Director-General may by order in
writing served on the person take such disciplinary action against the
person as the Director-General thinks is warranted.
(2) The order must include a statement of the reasons for the
Director-General's decision on the matter.
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Property, Stock and Business Agents Bill 2002 Clause 199
Complaints and disciplinary action Part 12
199 Recovery of monetary penalty
A monetary penalty imposed on a person by disciplinary action under
this Part may be recovered by the Director-General in a court of
competent jurisdiction as a debt due to the Crown.
200 Review of disciplinary action by ADT
A person against whom disciplinary action is taken by the
Director-General may apply to the Administrative Decisions Tribunal
under the Administrative Decisions Tribunal Act 1997 for a review of
the Director-General's decision on the disciplinary action or on a
review of the disciplinary action.
201 Warning notices
(1) The Director-General may authorise publication of a notice warning
persons of particular risks involved in dealing with a specified holder
of a licence, or a person who does not hold a licence, in connection
with the activities of licensees.
(2) For example, a warning may relate to the risks involved in dealing with
a person who has a recent history of unconscionable conduct in the
person's dealings with consumers.
(3) The Director-General may authorise publication of such a notice in any
one or more of the following ways:
(a) to any person making inquiries to the Director-General about
the licensee concerned,
(b) by advertisement by the use of any medium,
(c) to any media representatives.
(4) Publication of such a notice may not be authorised unless an
investigation has been conducted by the Director-General, whether or
not a complaint has been made.
(5) Before authorising publication of such a notice, the Director-General
must give the person concerned an opportunity for a period of not less
than 48 hours to make representations to the Director-General about
publication of such a notice, unless:
(a) the Director-General is not able, after making reasonable efforts
to do so, to contact the person promptly and advise the person
of that opportunity, or
(b) the person refuses to make any representations.
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Clause 201 Property, Stock and Business Agents Bill 2002
Part 12 Complaints and disciplinary action
(6) No opportunity to make representations is required to be given if, in
the opinion of the Director-General, there is an immediate risk to the
public.
(7) No liability is incurred by a person for publishing in good faith:
(a) a notice under this section, or
(b) a fair report or summary of such a notice.
202 Failure to comply with disqualification from involvement in business
A person who is disqualified under this Part from being involved in
the direction, management or conduct of the business of a licensee
must not act contrary to the disqualification.
Maximum penalty:
(a) 200 penalty units in the case of a corporation, or
(b) 100 penalty units in any other case.
203 Return of suspended or cancelled licence
A person who has possession of a licence or certificate of registration
that has been suspended or cancelled under this Part must give the
licence or certificate of registration to an officer of the Department at
any office of the Department within 7 days after the suspension or
cancellation takes effect.
Maximum penalty:
(a) 40 penalty units in the case of a corporation, or
(b) 20 penalty units in any other case.
Page 122
Property, Stock and Business Agents Bill 2002 Clause 204
Enforcement Part 13
Part 13 Enforcement
204 Authorised officers
(1) In this Act:
authorised officer means:
(a) an officer of the Department for the time being appointed under
this Part as an authorised officer, or
(b) an investigator appointed under section 18 of the Fair Trading
Act 1987, or
(c) a police officer.
(2) The Director-General may appoint any officer of the Department as an
authorised officer for the purposes of this Act.
(3) An authorised officer who is not a police officer is to be provided by
the Director-General with a certificate of identification.
(4) An authorised officer (other than a police officer) must, when
exercising on any premises any function of the authorised officer under
this Act, produce the officer's certificate of identification to any person
apparently in charge of the premises who requests its production.
205 Powers of entry, inspection etc
(1) An authorised officer may exercise the powers conferred by this
section for the purpose of:
(a) ascertaining whether the provisions of this Act or the
regulations are being complied with or have been contravened,
or
(b) investigating a complaint made or intended to be made under
this Act, or
(c) obtaining evidence, records or information in relation to a
matter that constitutes or may constitute a contravention of this
Act or the regulations.
(2) An authorised officer may enter and inspect at any reasonable time any
premises that the officer believes on reasonable grounds are used for
the carrying on of the business of an agent, whether or not the business
is being carried on by the holder of a licence.
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Clause 205 Property, Stock and Business Agents Bill 2002
Part 13 Enforcement
(3) While on premises entered under this section or under the authority of
a search warrant under this Part, an authorised officer may do any one
or more of the following:
(a) require any person on those premises to produce any records in
the possession or under the control of that person relating to the
carrying on of the business of an agent, and (in the case of
records stored electronically) to produce any such record in
written form,
(b) inspect, take copies of or extracts from, or make notes from,
any such records, and for that purpose may take temporary
possession of any such records,
(c) take possession of any such records if the authorised officer
considers it necessary to do so for the purpose of obtaining
evidence or protecting evidence from destruction,
(d) take such photographs, films and audio, video and other
recordings as the authorised officer considers necessary,
(e) require any person on those premises to answer questions or
otherwise furnish information in relation to the carrying on of
the practice of the business of an agent or a contravention of a
provision of this Act or the regulations,
(f) require the owner or occupier of those premises to provide the
authorised officer with such assistance and facilities as is or are
reasonably necessary to enable the authorised officer to exercise
the functions of an authorised officer under this section.
(4) An authorised officer is not entitled to enter a part of premises used for
residential purposes, except:
(a) with the consent of the occupier of the part, or
(b) a part of premises on which an auction of residential property
is being conducted, or
(c) under the authority of a search warrant.
206 Power of authorised officer to obtain information, records and evidence
If an authorised officer believes on reasonable grounds that a person
is capable of giving information, producing records or giving evidence
in relation to a matter that constitutes, or may constitute, an offence
against this Act or the regulations, the authorised officer may, by notice
in writing given to the person, require the person:
Page 124
Property, Stock and Business Agents Bill 2002 Clause 206
Enforcement Part 13
(a) to provide an authorised officer, by writing signed by the
person (or, in the case of a corporation, by a competent officer
of the corporation) and given to the authorised officer within
the time and in the manner specified in the notice, with any
such information, or
(b) to produce to an authorised officer, in accordance with the
notice, any such records, or
(c) to appear before an authorised officer at a time and place
specified in the notice and give any such evidence, either orally
or in writing, and produce any such records.
207 Obstruction etc of authorised officers
A person must not:
(a) without reasonable excuse, refuse or fail to comply with any
notice given or requirement made, or to answer any question
asked, by an authorised officer under this Part, or
(b) provide information or give evidence in purported compliance
with a requirement made or question asked by an authorised
officer under this Part knowing the information or evidence to
be false or misleading in a material particular, or
(c) wilfully delay, hinder or obstruct an authorised officer in the
exercise of the officer's functions under this Part.
Maximum penalty: 100 penalty units or imprisonment for 6 months,
or both.
208 Taking possession of records to be used as evidence
(1) If an authorised officer takes possession of any records under this Part
for the purpose of obtaining evidence or protecting evidence from
destruction, they may be retained by the officer until the completion of
any proceedings (including proceedings on appeal) in which they may
be evidence.
(2) The person from whom the records are taken must be provided, within
a reasonable time after the records are taken, with a copy of the records
certified by an authorised officer as a true copy.
(3) A copy of records provided under this section is, as evidence, of equal
validity to the records of which it is certified to be a copy.
Page 125
Clause 209 Property, Stock and Business Agents Bill 2002
Part 13 Enforcement
209 Search warrants
(1) An authorised officer may apply to an authorised justice for the issue
of a search warrant for premises if the officer believes on reasonable
grounds:
(a) that a provision of this Act or the regulations is being or has
been contravened on the premises, or
(b) that there is on the premises evidence of a contravention of this
Act or the regulations.
(2) An authorised justice to whom such an application is made may, if
satisfied that there are reasonable grounds for doing so, issue a search
warrant authorising an authorised officer named in the warrant:
(a) to enter and inspect the premises, and
(b) to exercise on the premises any function of an authorised
officer under this Part.
(3) Part 3 of the Search Warrants Act 1985 applies to a search warrant
issued under this section.
(4) In this section, authorised justice has the same meaning as in the
Search Warrants Act 1985.
210 Injunctions
(1) On the application of the Director-General, the Supreme Court may
grant an injunction restraining a threatened or apprehended
contravention, or the continuation of a contravention, of a provision of
this Act or the regulations.
(2) An injunction may be granted without the Director-General being
required to show a likelihood of damage.
(3) If in the opinion of the Court it is desirable to do so, the Court may
grant an interim injunction pending determination of the application.
(4) When the Director-General makes an application for the grant of an
injunction under this section, the Court is not to require the
Director-General or any other person, as a condition of granting an
interim injunction, to give an undertaking as to damages.
(5) This section does not limit any provision of the Fair Trading Act 1987.
Page 126
Property, Stock and Business Agents Bill 2002 Clause 211
Offences and proceedings Part 14
Offences Division 1
Part 14 Offences and proceedings
Division 1 Offences
211 Fraudulent conversion and false accounts of money received by
licensee or registered person
(1) This section applies to:
(a) any money received by a licensee or registered person on
behalf of any person in respect of any transaction in the
licensee's or registered person's capacity as a licensee or
registered person, or any part of any such money, and
(b) any money so received that is held by the licensee or registered
person as a stakeholder or in trust pending the completion of
any transaction.
(2) If the licensee or registered person fraudulently converts the money or
any part of that money to his or her own use or to the use of any other
person, the licensee or registered person is guilty of an indictable
offence and liable to imprisonment for a term of not more than 10
years.
(3) If the licensee or registered person fraudulently omits to account for,
deliver or pay the money or any part of the money to the person from
whom it was received or to the person or persons entitled to it, the
licensee or registered person is guilty of an indictable offence and
liable to imprisonment for a term of not more than 10 years.
(4) If the licensee or registered person fraudulently renders an account of
the money or any part of the money knowing the account to be false
in any material particular, the licensee or registered person is guilty of
an indictable offence and liable to imprisonment for a term of not more
than 10 years.
(5) On the prosecution of a person for an offence under this section it is
not necessary to prove the fraudulent conversion by the accused of any
specific sum of money if there is proof of a general deficiency on the
examination of the books of account, or entries kept, or made by the
accused, or otherwise, and the jury are satisfied that the accused
fraudulently converted the deficient money or any part of it.
Page 127
Clause 212 Property, Stock and Business Agents Bill 2002
Part 14 Offences and proceedings
Division 1 Offences
212 Fraudulent accounts for expenses, commission and other charges
If a licensee or registered person fraudulently renders an account of
expenses, commission or other charges incidental to any transaction or
proposed or contemplated transaction as a licensee or registered person
knowing the account to be false in any material particular, the licensee
or registered person is guilty of an indictable offence and liable to
imprisonment for a term of not more than 10 years.
213 Offences by persons other than principal offenders
A person who:
(a) aids, abets, counsels or procures a person to contravene, or
(b) induces, or attempts to induce, a person, whether by threats or
promises or otherwise, to contravene, or
(c) is in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of, or
(d) conspires with others to contravene,
a provision of this Act or the regulations is guilty of an offence against
this Act or the regulations and liable to the same penalty as a person
who contravenes the provision.
214 Operation of Crimes Act not affected
Nothing in this Division affects the generality of any provisions of the
Crimes Act 1900.
Division 2 Proceedings
215 Proceedings for offences
(1) Proceedings for an offence under this Act or the regulations may be
taken and prosecuted only by the Director-General or, in the name of
the Director-General, by a person acting with the authority of the
Director-General.
(2) Proceedings for an offence under this Act or the regulations (other than
proceedings for an indictable offence) may be dealt with:
(a) summarily before a Local Court constituted by a Magistrate
sitting alone, or
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Property, Stock and Business Agents Bill 2002 Clause 215
Offences and proceedings Part 14
Proceedings Division 2
(b) summarily before the Supreme Court in its summary
jurisdiction.
(3) If proceedings are brought in a Local Court, the maximum monetary
penalty that the Local Court may impose for the offence is 100 penalty
units or such other amount as may be prescribed by the regulations,
despite any higher maximum monetary penalty provided in respect of
the offence.
(4) Despite any proceedings against a person for an offence against this
Act or the regulations (whether resulting in a conviction or otherwise)
the person remains liable to civil proceedings in the same manner as
if the proceedings for an offence had not been taken.
216 Penalty notices
(1) An authorised officer may serve a penalty notice on a person if it
appears to the officer that the person has committed an offence against
this Act or the regulations, being an offence prescribed by the
regulations as a penalty notice offence.
(2) A penalty notice is a notice to the effect that, if the person served does
not wish to have the matter determined by a court, the person can pay,
within the time and to the person specified in the notice, the amount of
the penalty prescribed by the regulations for the offence if dealt with
under this section.
(3) A penalty notice may be served personally or by post.
(4) If the amount of penalty prescribed for an alleged offence is paid under
this section, no person is liable to any further proceedings for the
alleged offence.
(5) Payment under this section is not to be regarded as an admission of
liability for the purpose of, and does not in any way affect or
prejudice, any civil claim, action or proceeding arising out of the same
occurrence.
(6) The regulations may:
(a) prescribe an offence for the purposes of this section by
specifying the offence or by referring to the provision creating
the offence, and
(b) prescribe the amount of penalty payable for the offence if dealt
with under this section, and
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Clause 216 Property, Stock and Business Agents Bill 2002
Part 14 Offences and proceedings
Division 2 Proceedings
(c) prescribe different amounts of penalties for different offences
or classes of offences.
(7) The amount of a penalty prescribed under this section for an offence
is not to exceed the maximum amount of penalty that could be
imposed for the offence by a court.
(8) This section does not limit the operation of any other provision of, or
made under, this or any other Act relating to proceedings that may be
taken in respect of offences.
(9) In this section:
authorised officer means a person authorised in writing by the
Director-General as an authorised officer for the purposes of this
section.
217 Time for laying information
Proceedings for an offence against this Act (other than proceedings
that are to be dealt with on indictment) or the regulations may be
commenced within 3 years after the date on which the offence is
alleged to have been committed or, with the consent of the Attorney
General, at any time.
218 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any
provision of this Act or the regulations, each director of the
corporation, and each person concerned in the management of the
corporation, is taken to have contravened the same provision unless
the director or person satisfies the court that:
(a) he or she was not in a position to influence the conduct of the
corporation in relation to its contravention of the provision, or
(b) he or she, being in such a position, used all due diligence to
prevent the contravention by the corporation.
(2) A person may be proceeded against and convicted under a provision
pursuant to subsection (1) whether or not the corporation has been
proceeded against or been convicted under that provision.
(3) Nothing in subsection (1) prejudices or affects any liability imposed by
a provision of this Act or the regulations on any corporation by which
an offence against the provision is actually committed.
Page 130
Property, Stock and Business Agents Bill 2002 Clause 219
Administration Part 15
Part 15 Administration
219 Disclosure of information
(1) A person must not disclose any information obtained in connection
with the administration or execution of this Act unless that disclosure
is made:
(a) with the consent of the person from whom the information was
obtained, or
(b) in connection with the administration or execution of this Act,
or
(c) for the purposes of any legal proceedings arising out of this Act
or of any report of any such proceedings, or
(d) in accordance with a requirement imposed under the
Ombudsman Act 1974, the Freedom of Information Act 1989
or the Independent Commission Against Corruption Act 1988,
or
(e) to a regulatory officer or law enforcement officer, for the
purposes of assisting the officer in the exercise of the officer's
functions, or
(f) as otherwise authorised by this section or the regulations, or
(g) with other lawful excuse.
Maximum penalty: 20 penalty units or imprisonment for 6 months, or
both.
(2) The Director-General may communicate to any person directly
concerned in any transaction with a licensee in connection with his or
her business as a licensee any information furnished to the
Director-General in connection with the administration or execution of
this Act, in so far as it relates to any such transaction and directly
concerns any such person.
(3) The Director-General may request and receive information from a law
enforcement officer or regulatory officer for the purpose of assisting
the Director-General in the exercise of functions under this Act or
under any other Act administered by the Minister.
(4) The Director-General may enter into agreements and other
arrangements for the sharing or exchange of information as authorised
by this section.
Page 131
Clause 219 Property, Stock and Business Agents Bill 2002
Part 15 Administration
(5) In this section:
law enforcement officer means:
(a) a member of the Police Service, the Australian Federal Police
or of the police force of another State or a Territory, or
(b) the Director of Public Prosecutions or the Crown Prosecutor of
the State or the Director of Public Prosecutions or the Crown
Prosecutor of the Commonwealth or of another State or
Territory, or
(c) any other person, or officer of an authority, responsible for the
investigation or prosecution of offences under laws of the State,
the Commonwealth, another State or a Territory.
regulatory officer means an officer or employee of a government
agency (including the government of a jurisdiction outside the State
and outside Australia) exercising functions under an enactment with
respect to fair trading or an enactment that provides for the issue of
licences or other authorities in connection with the undertaking of an
activity regulated under the enactment.
220 Register
(1) The Director-General is to maintain a Register for the purposes of this
Act and is to enter and keep in the Register particulars of such of the
following as the regulations may require:
(a) the licences and certificates of registration issued under this
Act,
(b) applications for a licence or certificate of registration that are
refused,
(c) prosecutions taken under this Act and the result of those
prosecutions,
(d) warning notices that the Director-General has authorised
publication of under this Act,
(e) disciplinary action taken under this Act,
(f) undertakings given under this Act by the holder of a licence or
certificate of registration,
(g) the appointment of a manager or receiver under this Act,
(h) such other matters as may be prescribed by the regulations.
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Property, Stock and Business Agents Bill 2002 Clause 220
Administration Part 15
(2) Any person is entitled to inspect any entry in the Register on payment
of such fee as the Director-General may determine for the giving of
access to the Register.
221 Certificate evidence
A document purporting to be a certificate signed by the
Director-General and certifying that any person is or is not or was or
was not on any date or during any specified period the holder of a
licence of a specified class or the holder of a certificate of registration
is evidence of the matters certified in all courts and before all persons
and bodies authorised by law to receive evidence.
222 Delegation
The Director-General may delegate the exercise of any function of the
Director-General under this Act (other than this power of delegation)
to:
(a) any public servant employed in the Department of Fair
Trading, or
(b) any person, or any class of persons, authorised for the purposes
of this section by the regulations.
Page 133
Clause 223 Property, Stock and Business Agents Bill 2002
Part 16 Miscellaneous
Part 16 Miscellaneous
223 Fair Trading Act not affected
This Act does not limit or otherwise affect the exercise of any function
under the Fair Trading Act 1987.
224 Exclusion of personal liability
A matter or thing done or omitted to be done by the Director-General,
an authorised officer or any person acting under the direction of the
Director-General does not, if the matter or thing was done or omitted
in good faith for the purpose of executing this or any other Act, subject
the Director-General, authorised officer or person so acting personally
to any action, liability, claim or demand.
225 Service of notices
(1) A notice or direction in writing that is required or permitted to be
given under this Act may be given as provided by this section.
(2) A notice or direction may be given to a person other than a
corporation:
(a) by giving it to the person himself or herself, or
(b) by leaving it at his or her place of residence with someone who
apparently resides there and has apparently reached the age of
16 years, or
(c) by leaving it at his or her place of employment or business with
someone who is apparently employed there and has apparently
reached the age of 16 years, or
(d) by posting it in a letter addressed to him or her at the address
last known to the Director-General of his or her place of
residence, employment or business.
(3) A notice or direction may be given to a corporation:
(a) by giving it to the secretary of the corporation, or any other
person concerned in the management of the corporation,
personally, or
(b) by leaving it at the corporation's only or principal place of
business with someone who is apparently employed there and
has apparently reached the age of 16 years, or
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Property, Stock and Business Agents Bill 2002 Clause 225
Miscellaneous Part 16
(c) by posting it in a letter addressed to the corporation at the
address last known to the Director-General of its only or
principal place of business.
(4) This section does not limit any provision of the Corporations Act.
226 Repeals
(1) The Property, Stock and Business Agents Act 1941 is repealed.
(2) The Property, Stock and Business Agents (General) Regulation 1993
is repealed.
227 Savings and transitional provisions
Schedule 1 has effect.
228 Consequential amendments of Acts
Schedule 2 has effect.
229 Displacement of Corporations legislation
A provision of Part 9 (Management and receivership) is a Corporations
legislation displacement provision for the purposes of section 5G of the
Corporations Act.
230 Regulations
(1) The Governor may make regulations, not inconsistent with this Act,
for or with respect to any matter that by this Act is required or
permitted to be prescribed or that is necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) In particular the Governor may make regulations for or with respect to:
(a) prescribing the procedure to be followed in respect of
applications under this Act,
(b) fixing the maximum amount of remuneration to which a
licensee is entitled, by way of commission, fee, gain or reward,
for services performed by him or her as a licensee,
(c) requiring licensees to display or otherwise publicise or give
notice of particulars of their remuneration and prescribe the
consequences of a failure to comply with any such requirement,
(d) prescribing the accounts and other records to be kept by a
licensee and the manner in which they are to be kept,
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Clause 230 Property, Stock and Business Agents Bill 2002
Part 16 Miscellaneous
(e) prescribing the conditions applicable to and in respect of the
sale by auction of land or livestock,
(f) prescribing the manner in which the conditions of the sale by
auction of land or livestock must be notified,
(g) prescribing a method of service (which may include electronic
transmission) of any notice, statement of claim, order or other
document authorised or required to be served by or under a
provision of this Act, either in addition to or as an alternative to
a method of service provided for by the provision concerned,
(h) prescribing exemptions from the operation of this Act or
specified provisions of this Act.
(3) A regulation may create an offence punishable by a penalty not
exceeding 40 penalty units in the case of a corporation or 20 penalty
units in any other case.
231 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of
5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 5 years.
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Property, Stock and Business Agents Bill 2002
Savings and transitional provisions Schedule 1
Schedule 1 Savings and transitional provisions
(Section 227)
1 Definition
In this Schedule:
repealed Act means the Property, Stock and Business Agents Act 1941.
2 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect from
the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that
is earlier than the date of its publication in the Gazette, the provision
does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of its publication.
3 Licences and certificates of registration under repealed Act
(1) A person who was the holder of a licence or certificate of registration
under a provision of the repealed Act immediately before its repeal is
taken to be the holder of the corresponding licence or certificate of
registration under this Act.
(2) The corresponding licence or certificate of registration:
(a) is taken to have been issued subject to the same conditions to
which it was subject under the repealed Act, and
(b) remains in force for the remainder of the period for which it
was issued.
(3) Section 8 applies in respect of a service performed by a person before
the commencement of that section as if a reference in that section to a
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Property, Stock and Business Agents Bill 2002
Schedule 1 Savings and transitional provisions
licence included a reference to the corresponding licence under the
repealed Act.
Note. Licences under the repealed Act were issued for 3 years.
4 Pending applications and objections
(1) The repealed Act continues to apply as if it had not been repealed to
and in respect of:
(a) an application for the issue, renewal or restoration of a licence
or certificate of registration under a provision of the repealed
Act that was pending immediately before its repeal, and
(b) any objection under a provision of the repealed Act in respect
of such an application.
(2) A licence or certificate of registration issued or renewed under a
provision of the repealed Act pursuant to subclause (1) is taken to have
been issued or renewed immediately before the repeal of the provision.
5 Pending complaints
(1) The repealed Act continues to apply as if it had not been repealed to
and in respect of a complaint that was made under section 29, 29A,
60 or 60AA of the repealed Act and was pending immediately before
the repeal of those sections.
(2) For the purposes of the operation of this Schedule, any action taken by
a court on such a complaint is to have effect as if it was made
immediately before the repeal of the provision of the repealed Act
under which the complaint was made.
6 Pending appeals
(1) Any appeal pending under section 31 or 61 of the repealed Act
immediately before the repeal of the section under which the appeal
was made is to continue and be determined as if the repealed Act had
not been repealed.
(2) For the purposes of the operation of this Schedule, the determination
of the appeal is to have effect as if the appeal was made immediately
before the repeal of the provision of the repealed Act under which it
was made.
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Property, Stock and Business Agents Bill 2002
Savings and transitional provisions Schedule 1
7 Records
Any records kept under or for the purposes of a provision of the
repealed Act are taken to be kept under or for the purposes of the
corresponding provision of this Act.
8 Compensation Fund
(1) The Compensation Fund under this Act is a continuation of the
Compensation Fund under the repealed Act. The Compensation Fund
under the repealed Act is a continuation of the Property Services
Council Compensation Fund (the PSCC Fund) under the repealed
Act.
(2) Any amount payable to or from the Compensation Fund under the
repealed Act or the PSCC Fund immediately before the
commencement of this clause is payable instead to or from the
Compensation Fund under this Act.
(3) Contributions made to the Compensation Fund under the repealed Act
are taken to have been made to the Compensation Fund under this Act.
(4) Any payment under the repealed Act out of either the Compensation
Fund or the PSCC Fund in settlement in whole or in part of a claim
under the repealed Act is, for the purposes of this Act, taken to be a
payment made out of the Compensation Fund under this Act in
settlement in whole or in part of the claim concerned as if it were a
claim under this Act.
9 Statutory Interest Account
(1) The Statutory Interest Account under this Act is a continuation of the
Statutory Interest Account under the repealed Act.
(2) Any amount payable to the Statutory Interest Account under the
repealed Act immediately before the commencement of this clause is
payable instead to the Statutory Interest Account under this Act.
(3) Contributions made to the Statutory Interest Account under the
repealed Act are taken to have been made to the Statutory Interest
Account under this Act.
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Property, Stock and Business Agents Bill 2002
Schedule 1 Savings and transitional provisions
10 Trust account rates
A trust account rate determined for an authorised deposit-taking
institution and in force under section 36AA of the repealed Act
immediately before its repeal is taken to have been determined under
section 90 of this Act in respect of that institution until a different rate
is determined for that institution under that section.
11 Approval of business name
The Director-General is taken to have approved of a licensee carrying
on, or advertising or holding out that the licensee carries on, business
as a licensee under a name for the purposes of this Act if, immediately
before the commencement of this clause, the licensee carried on
business as a licensee under that name in compliance with section 43A
of the repealed Act.
12 Licences cancelled under repealed Act
A reference in this Act to a licence cancelled under this Act includes
a reference to a licence cancelled under the repealed Act.
13 Receivers
The repealed Act continues to apply to and in respect of a receiver
whose appointment under the repealed Act is in force immediately
before the commencement of this clause as if the repealed Act had not
been repealed.
14 Act extends to acts and omissions before commencement
Unless the context otherwise indicates or requires, a provision of this
Act extends to any act or omission occurring before the
commencement of the provision.
15 Continuity of things done before commencement
Anything done by the Director-General or a licensee under or for the
purposes of a provision of the repealed Act is, to the extent that the
thing done has effect immediately before the repeal of the provision,
taken to have been done under or for the purposes of the corresponding
provision of this Act.
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Property, Stock and Business Agents Bill 2002
Savings and transitional provisions Schedule 1
16 Disclosure of information
For the purposes of section 219 (Disclosure of information) of this
Act, information obtained in connection with the administration or
execution of the repealed Act is taken to have been obtained in
connection with the administration or execution of this Act.
17 Franchising agreements
(1) Section 35 (1) applies only to the entering into of a franchising
agreement after the commencement of that section.
(2) Section 35 (2) extends to a franchising agreement entered into before
the commencement of that section.
18 Agency agreements
Section 55 extends to services performed by a licensee under the
repealed Act before the commencement of that section.
Page 141
Property, Stock and Business Agents Bill 2002
Schedule 2 Consequential amendments
Schedule 2 Consequential amendments
(Section 228)
2.1 Community Land Management Act 1989 No 202
Section 3 Definitions
Omit "Property, Stock and Business Agents Act 1941" from the definition
of managing agent in section 3 (1).
Insert instead "Property, Stock and Business Agents Act 2002".
2.2 Conveyancers Licensing Act 1995 No 57
[1] Section 5 Disqualified persons
Omit section 5 (1) (h). Insert instead:
(h) is a disqualified person under the Property, Stock and
Business Agents Act 2002.
[2] Section 5 (2) (b)
Omit "Property, Stock and Business Agents Act 1941".
Insert instead "Property, Stock and Business Agents Act 2002".
[3] Section 19 Multidisciplinary partnerships
Omit "Property, Stock and Business Agents Act 1941" from section 19 (3).
Insert instead "Property, Stock and Business Agents Act 2002".
[4] Section 22 Sharing staff of legal practitioners and real estate and other
agents
Omit "Property, Stock and Business Agents Act 1941" from section 22 (1).
Insert instead "Property, Stock and Business Agents Act 2002".
Page 142
Property, Stock and Business Agents Bill 2002
Consequential amendments Schedule 2
[5] Section 29
Omit the section. Insert instead:
29 Bankers to pay interest to Statutory Interest Account
(1) Sections 90 and 91 of the Property, Stock and Business Agents
Act 2002 apply in respect of all money held in a general trust
account under this Division as if:
(a) the trust account were a trust account opened and kept
under section 86 of that Act, and
(b) the licensee who opened and keeps the trust account
were a licensee under that Act.
(2) A licensee must, when opening a trust account at an authorised
deposit-taking institution under this Division, ensure that the
authorised deposit-taking institution is notified that the trust
account is, for the purposes of sections 90 and 91 of that Act,
to be regarded as a trust account required by that Act. Such a
notification is, for the purposes of those sections, to be
regarded as a notification that the trust account is required by
that Act.
[6] Section 37 Definition
Omit "Property, Stock and Business Agents Act 1941" from the definition
of PSBA Act.
Insert instead "Property, Stock and Business Agents Act 2002".
[7] Section 38 Claims can be made against Compensation Fund
Omit "Part 6 (Compensation Fund) of the PSBA Act" from section 38 (1).
Insert instead "Part 10 of the PSBA Act".
[8] Section 38 (3)
Omit "Section 64E (4) of the PSBA Act".
Insert instead "Section 169 (4) of the PSBA Act".
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Property, Stock and Business Agents Bill 2002
Schedule 2 Consequential amendments
[9] Section 39 Contributions by licensees
Omit "section 64D or 64E of the PSBA Act".
Insert instead "section 168 or 169 of the PSBA Act".
[10] Section 43 Appointment of manager
Omit "a determination by the Director-General under Part 6 of the Property,
Stock and Business Agents Act 1941" from section 43 (1) (c).
Insert instead "a determination by the Director-General under Part 10 of the
Property, Stock and Business Agents Act 2002".
[11] Section 55 Supreme Court may appoint receiver
Omit "Property, Stock and Business Agents Act 1941" from
section 55 (2) (c).
Insert instead "Property, Stock and Business Agents Act 2002".
2.3 Fair Trading Act 1987 No 68
[1] Section 8 Delegation by Director-General
Omit "Property, Stock and Business Agents Act 1941" from
section 8 (1) (f).
Insert instead "Property, Stock and Business Agents Act 2002".
[2] Section 25I Functions
Omit "Property, Stock and Business Agents Act 1941" from paragraph (a)
of the definition of property services industry in section 25I (2).
Insert instead "Property, Stock and Business Agents Act 2002".
Page 144
Property, Stock and Business Agents Bill 2002
Consequential amendments Schedule 2
2.4 Fines Act 1996 No 99
Schedule 1 Statutory provisions under which penalty notices
issued
Omit "Property, Stock and Business Agents Act 1941, section 86C" from
Schedule 1.
Insert instead "Property, Stock and Business Agents Act 2002, section 216".
2.5 Landlord and Tenant (Rental Bonds) Act 1977 No 44
[1] Section 8 Deposit of rental bonds with Board
Insert after section 8 (2):
(2A) If a lessor's agent receives on behalf of the lessor a rental bond
for a lease or proposed lease, subsection (2) extends to require
the agent to deposit with the Board an amount of money
equivalent to the amount of that rental bond and so extends as
if a reference in that subsection to "that lessor" were a reference
to the agent.
[2] Section 20 Rental Bond Interest Account
Omit "Property, Stock and Business Agents Act 1941" from
section 20 (2A).
Insert instead "Property, Stock and Business Agents Act 2002".
[3] Section 20 (2AB)
Omit "Property, Stock and Business Agents Act 1941".
Insert instead "Property, Stock and Business Agents Act 2002".
[4] Section 20 (2AB)
Omit "(in the year ending 30 June next succeeding the year in which such
an agreement is made)".
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Property, Stock and Business Agents Bill 2002
Schedule 2 Consequential amendments
2.6 Pawnbrokers and Second-hand Dealers Act 1996 No 13
Section 4 Restrictions on operation of this Act
Omit "Property, Stock and Business Agents Act 1941" from section 4 (1).
Insert instead "Property, Stock and Business Agents Act 2002".
2.7 Property, Stock and Business Agents Act 2002
[1] Section 7
Omit the section.
[2] Section 17
Omit the section. Insert instead:
17 Application to licences of Licensing and Registration (Uniform
Procedures) Act 2002
(1) The Director-General may grant the following licences and
certificates of registration for the purposes of this Act:
(a) real estate agents' licences,
(b) stock and station agents' licences,
(c) business agents' licences,
(d) strata managing agents' licences,
(e) on-site residential property managers' licences,
(f) corporation licences,
(g) certificates of registration as a real estate salesperson,
(h) certificates of registration as a stock and station
salesperson,
(i) certificates of registration as a business salesperson,
(j) certificates of registration as a registered manager.
Page 146
Property, Stock and Business Agents Bill 2002
Consequential amendments Schedule 2
(2) Part 2 of the Licensing and Registration (Uniform Procedures)
Act 2002 (the applied Act) applies to and in respect of a licence
or certificate of registration, subject to the modifications and
limitations prescribed by or under this Act.
(3) For the purpose of applying Part 2 of the applied Act to a
licence or certificate of registration:
(a) the Director-General is taken to be the licensing
authority, and
(b) the licence or certificate of registration may be amended
under section 7 of that Act, and
(c) the licence or certificate of registration may not be
transferred under section 8 of that Act, and
(d) the references to 2 weeks, 4 weeks and 8 weeks in
section 9 (1) (a), (b) and (c) of that Act are each to be
read as references to 6 weeks, and
(e) an application for restoration of a licence or certificate
of registration under section 10 of that Act may not be
made more than 3 months after the date on which the
licence expires, and
(f) an application is not required to be advertised under
section 15 of that Act, and
(g) section 21 (4) of that Act does not have effect, and
(h) the reference to 14 days in section 24 (1) of that Act (as
to the period within which changed particulars must be
notified) is to be read as a reference to 7 days.
(4) A licence or certificate of registration is taken to be a fixed-
term licence for the purposes of Part 2 of the applied Act.
(5) Subject to this section, the regulations may make provision for
or with respect to such matters concerning a licence or
certificate of registration as are relevant to the operation of Part
2 of the applied Act.
17A Application fees and Compensation Fund contributions
(1) An applicant for a licence or certificate of registration must
make provision for the payment of an application fee of an
amount prescribed by the regulations.
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Property, Stock and Business Agents Bill 2002
Schedule 2 Consequential amendments
(2) An applicant for a licence must also make provision for the
payment of the contribution to the Compensation Fund required
in relation to the application.
[3] Sections 18, 19 and 24
Omit the sections.
[4] Section 25 Duration
Omit section 25 (2) and (3).
[5] Sections 26 and 27
Omit the sections.
2.8 Licensing and Registration (Uniform Procedures) Act 2002
[1] Schedule 1 Licences to which Part 2 of Act applies
Omit the matter relating to the Property, Stock and Business Agents Act
1941.
[2] Schedule 1
Insert in alphabetical order of Acts and instruments:
Property, Stock and Business Agents Act 2002
section 17 (1) (a), real estate agent's licence,
section 17 (1) (b), stock and station agent's licence,
section 17 (1) (c), business agent's licence,
section 17 (1) (d), strata managing agent's licence,
section 17 (1) (e), on-site residential property manager's licence,
section 17 (1) (f), corporation licence,
section 17 (1) (g), certificate of registration as a real estate salesperson,
section 17 (1) (h), certificate of registration as a stock and station
salesperson,
Page 148
Property, Stock and Business Agents Bill 2002
Consequential amendments Schedule 2
section 17 (1) (i), certificate of registration as a business salesperson
section 17 (1) (j), certificate of registration as a registered manager
[3] Schedule 2 Registration to which Part 3 of Act applies
Omit the matter relating to the Property, Stock and Business Agents Act
1941.
2.9 Retirement Villages Act 1999 No 81
[1] Section 23 Deposits to be kept in trust
Omit "Property, Stock and Business Agents Act 1941" from
section 23 (3) (b).
Insert instead "Property, Stock and Business Agents Act 2002".
[2] Section 168 Sale of premises
Omit "Property, Stock and Business Agents Act 1941" from the note to
section 168 (1).
Insert instead "Property, Stock and Business Agents Act 2002".
[3] Section 202 Costs of administration
Omit "Property, Stock and Business Agents Act 1941, in accordance with
section 63E of that Act" from section 202 (b).
Insert instead "Property, Stock and Business Agents Act 2002, in
accordance with section 190 of that Act".
2.10 Strata Schemes Management Act 1996 No 138
[1] Chapter 2, Part 4
Omit "Property, Stock and Business Agents Act 1941" from the
introductory note under the heading to Part 4 of Chapter 2.
Insert instead "Property, Stock and Business Agents Act 2002".
Page 149
Property, Stock and Business Agents Bill 2002
Schedule 2 Consequential amendments
[2] Section 26 What is a strata managing agent?
Omit "Property, Stock and Business Agents Act 1941".
Insert instead "Property, Stock and Business Agents Act 2002".
[3] Section 26, note
Omit "Property, Stock and Business Agents Act 1941".
Insert instead "Property, Stock and Business Agents Act 2002".
[4] Section 33 Information may be required relating to strata managing
agent's trust account
Omit "section 36 of the Property, Stock and Business Agents Act 1941".
Insert instead "the Property, Stock and Business Agents Act 2002".
[5] Section 38 Who is responsible for providing information if a strata
managing agent ceases to hold a licence or dies?
Omit "Property, Stock and Business Agents Act 1941".
Insert instead "Property, Stock and Business Agents Act 2002".
[6] Section 38 (a)
Omit "section 36 (6) of".
[7] Section 38 (b)
Omit "section 38 (2) of".
[8] Section 40 Certain provisions of other Acts requiring agents to provide
information not to apply to affairs of owners corporation
Omit "section 38A (3), (4), (5), (6) and (7) of the Property, Stock and
Business Agents Act 1941" from section 40 and from the note to that
section wherever occurring.
Insert instead "section 101 of the Property, Stock and Business Agents
Act 2001".
Page 150
Property, Stock and Business Agents Bill 2002
Consequential amendments Schedule 2
[9] Section 105 Owners corporation may require certain persons to
produce records, accounts and property of the owners corporation
Omit "section 38 of the Property, Stock and Business Agents Act 1941"
from section 105 (4).
Insert instead "the Property, Stock and Business Agents Act 2002".
[10] Section 105, note
Omit "Section 38 of the Property, Stock and Business Agents Act 1941".
Insert instead "The Property, Stock and Business Agents Act 2002".
[11] Section 162 Order appointing strata managing agent to exercise certain
functions
Omit "Property, Stock and Business Agents Act 1941" from
section 162 (4) (a).
Insert instead "Property, Stock and Business Agents Act 2002".
Page 151
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