New South Wales Consolidated Acts New South Wales Consolidated Acts(Section 18)
(1) In this Part:
"licensee" means the holder of a master licence for debt collection, and includes a person who has ceased to be a licensee and the personal representative of a licensee who has died.
"trust money" means money received for or on behalf of any person by a licensee, whether personally or through the holder of an operator licence for debt collection employed by the licensee, in connection with the licensee’s business as a licensee.
(2) A reference to money received for or on behalf of a person by a licensee extends:(a) in the application of this Part to a person who has ceased to be a licensee, to money received by that person for or on behalf of any other person in connection with his or her business as a licensee, and(b) in the application of this Part to the personal representative of a licensee who has died, to money received by the licensee or personal representative for or on behalf of a person in connection with the business carried on by the licensee.
(1) Money received for or on behalf of any person by a licensee in connection with the licensee’s business as a licensee:(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 deposit-taking institution in New South Wales.
(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 clause, 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.
Maximum penalty: 100 penalty units.
(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 clause does not take away or affect any just claim or lien that any licensee may have against or upon trust money.
A licensee must, within 5 days after becoming aware that a trust account of the licensee has become overdrawn, notify the Commissioner 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.
(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 clause 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.
(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 Commissioner in that month a statement (an "unclaimed money statement") showing particulars of:(a) the money so held, and(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 clause is to be in the form approved by the Commissioner.
(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 Commissioner 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) A statement under this clause 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) A statement under this clause is to be in the form approved by the Commissioner.
(4) The regulations may exempt money or a class of money from the operation of this clause.
(1) When the Commissioner receives an unclaimed money statement under this Division, the Commissioner is to:(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 money 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 Commissioner.
(3) At any time after the expiration of that 3 months the Commissioner 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 Commissioner any money referred to in the Gazette notification that has not been previously paid by that person out of the trust account in which it is held, and(b) to furnish to the Commissioner, 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 Commissioner must pay any money received by the Commissioner under this clause into the Consolidated Fund.
(5) When the Commissioner makes a payment into the Consolidated Fund, the Commissioner 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 Commissioner was held,(b) the amount held in respect of each of those persons,(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 Commissioner in respect of that money.
(6) A person who fails to comply with the requirements of any notice served on the person under this clause is guilty of an offence.Maximum penalty: 50 penalty units.
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.
(1) In this Part:
"licensee" means the holder of a master licence for debt collection, and includes a person who has ceased to be a licensee and the personal representative of a licensee who has died.
"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 Part.
(3) This Part extends to records in the possession, custody or control of a person even when the records are located outside the State.
(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.
(2) A record required by this clause 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 place of business (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 clause is to be kept.
(5) An entry in a record made under this clause and kept at a licensee’s place of business 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 clause is guilty of an offence.Maximum penalty: 50 penalty units.
(1) An authorised inspector 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 Commissioner and signed by the authorised inspector:(a) certifying as to the reason for serving the notice, as provided by this clause, and(b) requiring the authorised deposit-taking institution to produce to the authorised inspector 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 clause:(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 1 of this Schedule.
(3) An authorised inspector may take copies of or extracts from, or make notes from, any records produced to the authorised inspector under this clause and for that purpose may take temporary possession of those records.
(1) An authorised inspector to whom any record is produced under this Part may take possession of the record if the authorised inspector considers it necessary to do so for the purpose of obtaining evidence or protecting evidence from destruction.
(2) If an authorised inspector takes possession of any record under this clause, the record may be retained by the inspector 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 inspector as a true copy.
(4) A copy of a record provided under this clause is, as evidence, of equal validity to the record of which it is certified to be a copy.
(1) A person who is a licensee, a former licensee or the personal representative of a deceased 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(b) lodge the auditor’s report on the audit with the Commissioner.
(2) The Commissioner may in a particular case or class of cases by order in writing extend the period of 3 months under subclause (1).
(3) The person must retain a copy of the auditor’s report on the audit for a period of 3 years after the date on which the report was made.
(4) The auditor’s report is to be in a form approved by the Commissioner and is to be signed by the auditor.
Maximum penalty: 100 penalty units (in the case of a corporation) and 50 penalty units (in the case of an individual).
(1) The audit period applicable to a person is the year ending on 30 June or such other period as the Commissioner may fix in respect of the person under this clause.
(2) The Commissioner 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 Commissioner’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 Commissioner considers appropriate.
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 3 months after that day, make and lodge with the Commissioner a statutory declaration to that effect.
Maximum penalty: 100 penalty units.
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.
(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 2001 of the Commonwealth, 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 Commissioner 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 20 shareholders.
(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 Commissioner.
(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:(a) in the course of the auditor’s duties as an auditor or assistant of an auditor, or(b) in accordance with this clause.
(3) An auditor’s report under this Division (including under this clause) relating to documents or records of any person, and any statutory declaration lodged with the Commissioner under this Division, are to be made available by the Commissioner 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.
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 authorised deposit-taking institution.
(1) A direction under this Division may be given when it appears to the Commissioner that any of the following persons has, or may have, stolen, misappropriated or misapplied trust money:(a) a licensee,(b) the person in charge of a licensee’s business,(c) an employee of a licensee.
(2) The Commissioner may by direction in writing direct that:(a) all or part of the amount to the credit of a specified account be paid to the Commissioner, or(b) an amount must not be drawn from a specified account other than with the Commissioner’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 Commissioner pursuant to such a direction must be paid into the Consolidated Fund.
(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 Commissioner or a person authorised by the Commissioner for the purposes of this clause, 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 Commissioner or authorised person on a cheque or other instrument is sufficient evidence of the Commissioner’s approval to draw an amount from the account to honour the cheque or other instrument.
(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 clause 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.
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 Commissioner or a person authorised by the Commissioner to sign the cheque or instrument.
Maximum penalty: 100 penalty units or imprisonment for 12 months, or both.
(1) The Commissioner or a person authorised in writing by the Commissioner (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 Commissioner 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.
(1) A direction remains in force until it is withdrawn.
(2) The Commissioner may withdraw a direction under this Division at any time.
(3) When a direction is withdrawn, the Commissioner 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.
In this Part:
"associate", in relation to a licensee, has the meaning given to it by clause
27.
"failure to account" has the meaning given to it by clause 28.
"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."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
(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.
(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 2001 of the Commonwealth, or(f) a person declared by the regulations to be an associate of the licensee or belonging to a class of persons so declared.
(2) For the purposes of subclause (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) an existing or former de facto partner, 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 clause.
(3) In this clause:
"de facto partner", in relation to a licensee or other person, means the other party to a de facto relationship (within the meaning of the Property (Relationships) Act 1984 ) with the licensee or other person.
(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 subclause (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.
(1) The Supreme Court may, on the application of the Commissioner, 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 Commissioner only if:(a) the licensee has made a request to the Commissioner for the appointment of a receiver, or(b) the licensee’s licence has been suspended or cancelled, or(c) the Commissioner is of the opinion that there has been, or that there may have been, a failure to account by the licensee, or(d) the Commissioner is of the opinion that a person is unable to obtain payment or delivery of property held by the licensee because the licensee:and the Commissioner is of the opinion that it is necessary for the application to be made in order to protect the interests of other persons.(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,
(3) The Commissioner may publicly notify the appointment of a receiver of all or any property of a licensee.
(4) The Supreme Court is not to require the Commissioner or any other person, as a condition of granting an application under this clause, to give any undertaking as to damages or costs.
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.
(1) On the appointment of a receiver, the Commissioner 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.
(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 subclause (4) (a) authorises:(a) any police officer, or(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 subclause (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 clause if it transpires that it is not 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 clause is not, merely because of that compliance, subject to any liability, claim or demand.
(4) Information given to a receiver under this clause 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 1 of this Schedule 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.
(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 clause 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.
A person must not, with intent to defeat the purposes of this Part:
(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
(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.
(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 subclause (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.
(4) If a receiver takes proceedings under subclause (3) (b) in relation to a cause of action claimed by a person, the receiver may not later take proceedings under subclause (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 clause 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.
(1) A receiver, or a person authorised by the Commissioner, 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 clause is admissible in any proceedings taken by a receiver under this Part and is evidence of the matters specified in the certificate.
(1) Proceedings taken under this Part 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.
(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.
(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.
(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 subclause (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.
(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 one month after the 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 clause 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.
(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 one 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 clause 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 clause:
"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.
(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 clause:(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.
(1) If receivable property under the control of the receiver has not been dealt with in accordance with this Part, the receiver must cause notice of that fact to be given to the Commissioner and:(a) if the Commissioner so requires within one month after the notice is given-must transfer and deliver the property to the Commissioner, 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 Commissioner under this clause, the Commissioner:(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 Commissioner under this clause.
(3) The Commissioner must apply money paid to the Commissioner under this clause:(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 Commissioner under this clause that is surplus to the requirements of this clause must be paid to the relevant licensee or relevant associate.
(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 clause, and any profit made on the sale of such an investment, is receivable property.
(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 Commissioner 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.
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.
(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 clause, the Supreme Court may give such directions as it thinks fit.
(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.
(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 Commissioner.
(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 clause are to remain in the custody of the Court.
(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 clause unless:(a) the expenses of the receivership have been paid to the Commissioner, or(b) the Commissioner otherwise directs in relation to those expenses.
(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 subclause (2) (b).
A person must not hinder, obstruct or delay a receiver in the exercise of his or her functions under this Part.
Maximum penalty: 100 penalty units.