New South Wales Consolidated Acts

PROPERTY, STOCK AND BUSINESS AGENTS ACT 2002 - SECT 3

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

(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

(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.
"de facto partner", in relation to a person, means the other party to a de facto relationship (within the meaning of the Property (Relationships) Act 1984 ) with the person.
"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.
"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

(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

(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.

"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 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.