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Queensland
PROPERTY AGENTS AND
MOTOR DEALERS
AMENDMENT BILL 2001
Queensland
PROPERTY AGENTS AND MOTOR
DEALERS AMENDMENT BILL 2001
TABLE OF PROVISIONS
Section Page
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Amendment of title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5 Replacement of ch 1, pt 2, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6 Amendment of s 10 (Object) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7 Amendment of s 28 (Chief executive must consider suitability of
applicants and licensees) ..................................... 7
8 Amendment of s 74 (Immediate suspension) . . . . . . . . . . . . . . . . . . . . . . . . 8
9 Amendment of s 86 (Chief executive must consider suitability of
applicants) ............................................ 8
10 Amendment of s 104 (Immediate suspension) . . . . . . . . . . . . . . . . . . . . . . . 8
11 Amendment of s 138 (Disclosures to prospective buyer) . . . . . . . . . . . . . . . 9
12 Amendment of s 268 (Disclosures to prospective buyer) . . . . . . . . . . . . . . . 10
13 Amendment of s 363 (Purposes of ch 11) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14 Amendment of s 364 (Definitions for ch 11) . . . . . . . . . . . . . . . . . . . . . . . . 11
15 Insertion of new ss 365A and 365B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
365A Buyer to receive copy of property valuation buyer pays for . . . . . . . 12
365B Lawyer's disclosure to buyer about independence . . . . . . . . . . . . . . 12
16 Amendment of s 366 (Warning statement to be attached to contract) . . . . . 13
17 Amendment of s 367 (Buyer's rights if warning statement not given) . . . . . 14
18 Amendment of s 369 (Waiving cooling-off period) . . . . . . . . . . . . . . . . . . . 14
19 Amendment of s 370 (Shortening cooling-off period) . . . . . . . . . . . . . . . . . 15
20 Amendment of s 450 (Jurisdiction) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2
Property Agents and Motor Dealers Amendment Bill
2001
21 Amendment of s 469 (Definitions for ch 14) . . . . . . . . . . . . . . . . . . . . . . . . 16
22 Amendment of s 470 (Claims) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
23 Amendment of s 488 (Deciding claims other than minor claims) . . . . . . . . 17
24 Insertion of new ch 14, pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
PART 3A--MARKETEER PROCEEDINGS
500A Grounds for starting marketeer proceeding . . . . . . . . . . . . . . . . . . . . 17
500B How to start a proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
500C When proceeding is taken to start . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
500D Fourteen days must pass before hearing date . . . . . . . . . . . . . . . . . . 18
500E Amendment of complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
25 Amendment of s 506 (Constitution of tribunal for hearing) . . . . . . . . . . . . . 19
26 Amendment of s 508 (Way tribunal is to conduct proceedings) . . . . . . . . . . 19
27 Amendment of s 525 (Punishment of contempt). . . . . . . . . . . . . . . . . . . . . . 19
28 Insertion of new ch 14, pt 5, divs 6A and 6B . . . . . . . . . . . . . . . . . . . . . . . . 19
Division 6A--Public examinations
528A Tribunal may conduct public examination. . . . . . . . . . . . . . . . . . . . . 20
528B Procedure before public examination starts. . . . . . . . . . . . . . . . . . . . 20
Division 6B--Stopping particular conduct
528C Stopping particular conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
29 Insertion of new ss 530A and 530B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
530A Orders tribunal may make in a marketeer proceeding . . . . . . . . . . . . 22
530B Criteria for deciding amount to be ordered . . . . . . . . . . . . . . . . . . . . 24
30 Amendment of ch 16, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
31 Insertion of new ch 16, pts 3 and 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
PART 3--PRESERVATION OF ASSETS
572A Powers of court for preservation of assets . . . . . . . . . . . . . . . . . . . . . 25
PART 4--CIVIL PENALTIES AND COMPENSATION ORDERS FOR
PARTICULAR CONTRAVENTIONS
572B Application of pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
572C Application for order imposing civil penalties . . . . . . . . . . . . . . . . . 27
572D Orders District Court may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
572E Criteria for deciding amount to be ordered . . . . . . . . . . . . . . . . . . . . 28
32 Amendment of ch 17, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3
Property Agents and Motor Dealers Amendment Bill
2001
33 Amendment of ch 17, pt 1, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
34 Insertion of new ss 573A to 573E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
573A Misleading conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
573B Unconscionable conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
573C False representations and other misleading conduct in relation to
residential property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
573D Application of ss 573A, 573B and 573C . . . . . . . . . . . . . . . . . . . . . . 34
573E Offensive conduct in relation to residential property. . . . . . . . . . . . . 34
35 Insertion of new s 575A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
575A Chief executive to ask for substantiation of representations
made by marketeers ................................. 34
36 Amendment of s 590 (Responsibility for acts or omissions of
representatives) .......................................... 35
37 Amendment of s 592 (Power of court) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
38 Insertion of new s 592A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
592A Power of court for particular offences . . . . . . . . . . . . . . . . . . . . . . . . 35
39 Amendment of sch 3 (Dictionary). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2001
A BILL
FOR
An Act to amend the Property Agents and Motor Dealers Act 2000
s1 6 s6
Property Agents and Motor Dealers Amendment Bill
2001
The Parliament of Queensland enacts-- 1
1 Short title
Clause 2
This Act may be cited as the Property Agents and Motor Dealers 3
Amendment Act 2001. 4
2 Commencement
Clause 5
Sections 11 to 19 commence on a day to be fixed by proclamation. 6
3 Act amended
Clause 7
This Act amends the Property Agents and Motor Dealers Act 2000. 8
4 Amendment of title
Clause 9
Title, after `employees,'-- 10
insert-- 11
`to protect consumers against particular undesirable practices,'. 12
5 Replacement of ch 1, pt 2, hdg
Clause 13
Chapter 1, part 2, heading-- 14
omit, insert-- 15
`PART 2--OBJECTS'. 16
6 Amendment of s 10 (Object)
Clause 17
(1) Section 10, heading, `Object'-- 18
omit, insert-- 19
`Objects'. 20
(2) Section 10(2), `The object is'-- 21
omit, insert-- 22
s7 7 s7
Property Agents and Motor Dealers Amendment Bill
2001
`The objects are'. 1
(3) Section 10(2)(f), `and undertakings'-- 2
omit, insert-- 3
`, undertakings, and, for contraventions by marketeers, preservation of 4
assets and civil penalties'. 5
(4) Section 10(2)-- 6
insert-- 7
`(ca) providing protection for consumers in their dealings with 8
marketeers; and'. 9
(5) Section 10(2)-- 10
insert-- 11
`(ea) providing for the enforcement of matters involving marketeers by 12
the tribunal and the District Court; and'. 13
(6) Section 10(2)(a) to (f), as amended-- 14
renumber as section 10(3)(a) to (h). 15
(7) Section 10-- 16
insert-- 17
`(2) Another significant object of this Act is to provide a way of 18
protecting consumers against particular undesirable practices associated 19
with the promotion of residential property.'. 20
7 Amendment of s 28 (Chief executive must consider suitability of
Clause 21
applicants and licensees) 22
(1) Section 28(1)(f) to (h)-- 23
renumber as section 28(1)(g) to (i). 24
(2) Section 28(1)-- 25
insert-- 26
`(f) whether, within the previous 5 years, the tribunal or the District 27
Court has made an order under this Act against the person 28
because of the person's involvement as a marketeer of residential 29
property;'. 30
s8 8 s 10
Property Agents and Motor Dealers Amendment Bill
2001
8 Amendment of s 74 (Immediate suspension)
Clause 1
Section 74(1)-- 2
insert-- 3
`(c) the chief executive considers, on reasonable grounds, that a 4
licensee-- 5
(i) has contravened or is contravening this Act; or 6
(ii) is likely or proposing to engage in conduct that would 7
contravene this Act.'. 8
9 Amendment of s 86 (Chief executive must consider suitability of
Clause 9
applicants) 10
(1) Section 86(1)(e) to (j)-- 11
renumber as section 86(1)(f) to (k). 12
(2) Section 86(1)-- 13
insert-- 14
`(e) whether, within the previous 5 years, the tribunal or the District 15
Court has made an order under this Act against the person 16
because of the person's involvement as a marketeer of residential 17
property;'. 18
10 Amendment of s 104 (Immediate suspension)
Clause 19
Section 104(1)(a) and (b)-- 20
omit, insert-- 21
`(a) both-- 22
(i) an irregularity or deficiency exists in a licensee's trust 23
account; and 24
(ii) a registered employee of the licensee may be responsible for 25
the irregularity or deficiency; or 26
(b) a registered employee-- 27
(i) has contravened or is contravening this Act; or 28
s 11 9 s 11
Property Agents and Motor Dealers Amendment Bill
2001
(ii) is likely or proposing to engage in conduct that would 1
contravene this Act.'. 2
11 Amendment of s 138 (Disclosures to prospective buyer)
Clause 3
(1) Section 138(1), `real estate agent or a real estate salesperson acting 4
for the agent in'-- 5
omit, insert-- 6
`residential property agent for'. 7
(2) Section 138(1)-- 8
insert-- 9
`(c) the amount, value or nature of any benefit any person has 10
received, receives, or expects to receive in connection with the 11
sale, or for promoting the sale, or for providing a service in 12
connection with the sale, of the property. 13
14
Examples for paragraph (c) of persons who may receive a benefit--
15
· seller
16
· finance broker
17
· financial adviser
18
· financier
19
· property valuer
20
· solicitor
21
· residential property agent.'.
(3) Section 138-- 22
insert-- 23
`(3) Also, for subsection (1)(c), disclosure in compliance with the 24
approved form is sufficient. 25
`(4) In this section-- 26
"benefit" means monetary or other benefit. 27
"residential property agent" means-- 28
(a) a real estate agent; or 29
(b) a real estate salesperson acting for the real estate agent; or 30
s 12 10 s 12
Property Agents and Motor Dealers Amendment Bill
2001
(c) a person acting as a real estate agent in contravention of 1
section 160;1 or 2
(d) a person acting as a real estate salesperson in contravention of 3
section 161.2'. 4
12 Amendment of s 268 (Disclosures to prospective buyer)
Clause 5
(1) Section 268, `property developer'-- 6
omit, insert-- 7
`residential property developer'. 8
(2) Section 268(1)-- 9
insert-- 10
`(d) the amount, value or nature of any benefit any person has 11
received, receives, or expects to receive in connection with the 12
sale, or for promoting the sale, or for providing a service in 13
connection with the sale, of the property. 14
15
Examples for paragraph (d) of persons who may receive a benefit--
16
· seller
17
· finance broker.
18
· financial adviser.
19
· financier.
20
· property valuer.
21
· solicitor.
22
· residential property developer.'.
(3) Section 268-- 23
insert-- 24
`(3) Also, for subsection (1)(d), disclosure in compliance with the 25
approved form is sufficient. 26
`(4) In this section-- 27
"benefit" means monetary or other benefit. 28
1 Section 160 (Acting as real estate agent)
2 Section 161 (Pretending to be real estate salesperson)
s 13 11 s 14
Property Agents and Motor Dealers Amendment Bill
2001
"residential property developer" means-- 1
(a) a property developer; or 2
(b) a person acting as a property developer in contravention of 3
section 275.3'. 4
13 Amendment of s 363 (Purposes of ch 11)
Clause 5
Section 363(b)-- 6
omit, insert-- 7
`(b) to require all relevant contracts for the sale of residential property 8
in Queensland to include consumer protection information, 9
including a statement that the contract is subject to a cooling-off 10
period; and 11
(c) to enhance consumer protection for buyers of residential property 12
by ensuring, as far as practicable, the independence of lawyers 13
acting for buyers.'. 14
14 Amendment of s 364 (Definitions for ch 11)
Clause 15
(1) Section 364, definitions "contract", "property information 16
session" and "relevant contract"-- 17
omit. 18
(2) Section 364-- 19
insert-- 20
` "formed on a sale by auction" means formed on sale by auction-- 21
(a) directly on the fall of the hammer, by outcry; or 22
(b) directly at the end of another similar type of competition for 23
purchase. 24
25
Examples--
26
1. A contract for the sale of property is formed on a sale by auction when
27
the auctioneer declares the property sold on the fall of the hammer.
3 Section 275 (Acting and marketing offences)
s 15 12 s 15
Property Agents and Motor Dealers Amendment Bill
2001
1
2. A contract for the sale of property is not formed on a sale by auction
2
when the property is passed in at auction and a bidder subsequently
3
negotiates and purchases the property.
"relevant contract" means a contract for the sale of residential property in 4
Queensland, other than a contract formed on a sale by auction.'. 5
15 Insertion of new ss 365A and 365B
Clause 6
Chapter 11, part 1, after section 365-- 7
insert-- 8
`365A Buyer to receive copy of property valuation buyer pays for 9
`(1) This section applies if, for a relevant contract-- 10
(a) it is a term of the contract that the buyer must pay for a valuation 11
of the property that, under the contract, is not required to have 12
been given to the buyer before the relevant contract is entered 13
into; or 14
(b) the seller or the seller's agent otherwise requires that the buyer 15
must pay for a valuation of the property that is not required to be 16
given or to have been given to the buyer before the relevant 17
contract is entered into. 18
`(2) Despite the term or requirement, the seller or agent commits an 19
offence if the seller or agent fails to give the buyer a copy of the valuation 20
before the relevant contract is entered into. 21
Maximum penalty--200 penalty units. 22
`(3) The term or requirement is effective only if, before the relevant 23
contract is entered into by the buyer, the buyer receives the valuation and, 24
in writing, acknowledges the receipt. 25
`(4) Subsection (3) does not affect subsection (2). 26
`(5) A contravention of subsection (2) does not affect the validity of the 27
relevant contract. 28
`365B Lawyer's disclosure to buyer about independence 29
`(1) This section applies if a buyer or prospective buyer ("buyer") 30
engages a lawyer in relation to the purchase or proposed purchase of a 31
residential property under a relevant contract. 32
s 16 13 s 16
Property Agents and Motor Dealers Amendment Bill
2001
`(2) The lawyer must give the buyer a lawyer's certificate in the approved 1
form and explain to the buyer the purpose and nature of the certificate. 2
`(3) The lawyer's certificate must be signed and dated by the lawyer and 3
must state-- 4
(a) whether the lawyer is independent of the seller, the seller's agents 5
and anyone else involved in the sale, or promotion of the sale, or 6
provision of a service in connection with the sale, of the property 7
and whether the lawyer has a business, family or other 8
relationship with any of those persons; and 9
(b) whether the lawyer has received, is receiving, or expects to 10
receive a benefit in connection with the sale, or for promoting the 11
sale, or for providing a service in connection with the sale, of the 12
property, other than professional costs and disbursements 13
payable by the buyer; and 14
(c) the lawyer has explained to the buyer the purpose and nature of 15
the certificate. 16
`(4) In this section-- 17
"benefit" means monetary or other benefit.'. 18
16 Amendment of s 366 (Warning statement to be attached to
Clause 19
contract) 20
(1) Section 366, heading, `contract'-- 21
omit, insert-- 22
`relevant contract'. 23
(2) Section 366(1) and (2), from `contract' to `Queensland'-- 24
omit, insert-- 25
`relevant contract'. 26
(3) Section 366(1), `or (4)'-- 27
omit. 28
(4) Section 366(3)(f)-- 29
renumber as section 366(3)(g). 30
(5) Section 366(3)-- 31
s 17 14 s 18
Property Agents and Motor Dealers Amendment Bill
2001
insert-- 1
`(f) a recommendation that the buyer seek an independent valuation 2
of the property before the cooling-off period ends;'. 3
(6) Section 366(4) and (5)-- 4
omit, insert-- 5
`(4) A statement purporting to be a warning statement is of no effect 6
unless-- 7
(a) before the contract is signed by the buyer, the statement is signed 8
and dated before a witness by the buyer; and 9
(b) the words on the statement are presented in substantially the 10
same way as the words are presented on the approved form. 11
12
Example for paragraph (b)--
13
If words on the approved form are presented in 14 point font, the words on
14
the warning statement must also be presented in 14 point font.'.
17 Amendment of s 367 (Buyer's rights if warning statement not
Clause 15
given) 16
Section 367(2), `366(5)'-- 17
omit, insert-- 18
`366(4)'. 19
18 Amendment of s 369 (Waiving cooling-off period)
Clause 20
Section 369(3)-- 21
omit, insert-- 22
`(3) The lawyer's certificate must be signed and dated by the lawyer 23
giving the certificate and confirm the following by stating-- 24
(a) the lawyer is independent of the seller, the seller's agents and 25
anyone else involved in the sale, or promotion of the sale, or 26
provision of a service in connection with the sale, of the property 27
and has no business, family or other relationship with any of 28
those persons; 29
(b) the lawyer has not received, is not receiving, or does not expect 30
to receive a benefit in connection with the sale, or for promoting 31
s 19 15 s 19
Property Agents and Motor Dealers Amendment Bill
2001
the sale, or for providing a service in connection with the sale, of 1
the property, other than professional costs and disbursements 2
payable by the buyer; 3
(c) the lawyer has explained to the buyer-- 4
(i) the effect of the contract; and 5
(ii) the purpose and nature of the certificate; and 6
(iii) the legal effect of the buyer giving the certificate to the 7
seller or the seller's agent. 8
`(4) In this section-- 9
"benefit" means monetary or other benefit.'. 10
19 Amendment of s 370 (Shortening cooling-off period)
Clause 11
(1) Section 370(2)-- 12
omit, insert-- 13
`(2) The lawyer's certificate must be signed and dated by the lawyer 14
giving the certificate and confirm the following by stating-- 15
(a) the lawyer is independent of the seller, the seller's agents and 16
anyone else involved in the sale, or promotion of the sale, or 17
provision of a service in connection with the sale, of the property 18
and has no business, family or other relationship with any of 19
those persons; 20
(b) the lawyer has not received, is not receiving, or does not expect 21
to receive a benefit in connection with the sale, or for promoting 22
the sale, or for providing a service in connection with the sale, of 23
the property, other than professional costs and disbursements 24
payable by the buyer; 25
(c) the lawyer has explained to the buyer-- 26
(i) the effect of the contract; and 27
(ii) the purpose and nature of the certificate; and 28
(iii) the legal effect of the buyer giving the certificate to the 29
seller or the seller's agent.'. 30
(2) Section 370-- 31
insert-- 32
s 20 16 s 22
Property Agents and Motor Dealers Amendment Bill
2001
`(4) In this section-- 1
"benefit" means monetary or other benefit.'. 2
20 Amendment of s 450 (Jurisdiction)
Clause 3
(1) Section 450(c) and (d)-- 4
renumber as section 450(d) and (e). 5
(2) Section 450-- 6
insert-- 7
`(c) to hear and decide applications under this Act relating to 8
marketeers;'. 9
21 Amendment of s 469 (Definitions for ch 14)
Clause 10
(1) Section 469, definition "complaint"-- 11
omit. 12
(2) Section 469-- 13
insert-- 14
` "complaint"-- 15
(a) for a disciplinary proceeding--see section 497(1); 4
16
(b) for a marketeer proceeding--see section 500B(1).5'. 17
22 Amendment of s 470 (Claims)
Clause 18
Section 470(1)(a)-- 19
insert-- 20
· section 573A6 21
4 Section 497 (How to start disciplinary proceedings)
5 Section 500B (How to start a proceeding)
6 Section 573A (Misleading conduct)
s 23 17 s 24
Property Agents and Motor Dealers Amendment Bill
2001
· section 573B7 1
· section 573C '.
8
2
23 Amendment of s 488 (Deciding claims other than minor claims)
Clause 3
Section 488(3)(a)-- 4
omit, insert---- 5
`(a) take into account-- 6
(i) any amount the claimant might reasonably have received or 7
recovered if not for the claimant's neglect or default; and 8
(ii) any amount ordered to be paid to the claimant as 9
compensation under section 530A, 572D or 592A;9 and'. 10
24 Insertion of new ch 14, pt 3A
Clause 11
Chapter 14-- 12
insert-- 13
`PART 3A--MARKETEER PROCEEDINGS 14
`500A Grounds for starting marketeer proceeding 15
`The following are grounds for starting a proceeding against a marketeer 16
for orders under section 530A ("marketeer proceeding")-- 17
(a) the marketeer has contravened or is contravening section 573A, 18
573B or 573C;10 19
(b) the marketeer is likely or proposing to engage in conduct that 20
would contravene section 573A, 573B or 573C; 21
7 Section 573B (Unconscionable conduct)
8 Section 573C (False representations and other misleading conduct in relation to
residential property)
9 Section 530A (Orders tribunal may make in a marketeer proceeding), 572D (Orders
District Court may make) or 592A (Power of court for particular offences)
10 Section 573A (Misleading conduct), 573B (Unconscionable conduct) or
573C (False representations and other misleading conduct in relation to residential
property)
s 24 18 s 24
Property Agents and Motor Dealers Amendment Bill
2001
(c) the marketeer is reasonably suspected of anything mentioned in 1
paragraph (a) or (b). 2
`500B How to start a proceeding 3
`(1) A marketeer proceeding is started by the chief executive filing with 4
the registrar a statement in the approved form ("complaint") stating-- 5
(a) the grounds for starting the proceeding; and 6
(b) the conduct constituting the grounds; and 7
(c) that an application will be made for orders under section 530A. 8
`(2) The registrar must fix a day for the hearing of the complaint 9
("hearing date") and issue a notice in the approved form ("attendance 10
notice") requiring the marketeer to attend before the tribunal. 11
`(3) The chief executive must give a copy of the complaint and 12
attendance notice to the marketeer at least 7 days before the day fixed for 13
the hearing. 14
`(4) The complaint and attendance notice may be combined in 1 notice. 15
`500C When proceeding is taken to start 16
`A marketeer proceeding is taken to start on the day the marketeer is 17
given the complaint and attendance notice. 18
`500D Fourteen days must pass before hearing date 19
`The hearing date must be a day at least 14 days after the proceeding 20
starts. 21
`500E Amendment of complaint 22
`(1) The tribunal may at any stage of the proceeding amend the 23
particulars of the complaint if the tribunal considers the amendment is 24
appropriate in all the circumstances. 25
`(2) The particulars of the complaint may be amended-- 26
(a) on the chief executive's application; or 27
s 25 19 s 28
Property Agents and Motor Dealers Amendment Bill
2001
(b) on the tribunal's own initiative. 1
`(3) The amended complaint is taken to be the complaint.'. 2
25 Amendment of s 506 (Constitution of tribunal for hearing)
Clause 3
Section 506-- 4
insert-- 5
`(3) Also, for a marketeer proceeding, the tribunal must be constituted by 6
the chairperson or another member who is a lawyer sitting alone.11'. 7
26 Amendment of s 508 (Way tribunal is to conduct proceedings)
Clause 8
(1) Section 508(4)-- 9
renumber as section 508(5). 10
(2) Section 508-- 11
insert-- 12
`(4) To remove doubt, it is declared that the tribunal's decisions are to be 13
made on the balance of probabilities.'. 14
27 Amendment of s 525 (Punishment of contempt)
Clause 15
Section 525(9)-- 16
omit, insert-- 17
`(9) The Uniform Civil Procedure Rules 1999, so far as they relate to the 18
enforcement of non-money orders, apply with necessary changes to the 19
court's investigation, hearing and power to punish.'. 20
28 Insertion of new ch 14, pt 5, divs 6A and 6B
Clause 21
After section 528-- 22
insert-- 23
11 See chapter 14 (Claims against the fund and other proceedings), part 3A (Marketeer
proceedings)
s 28 20 s 28
Property Agents and Motor Dealers Amendment Bill
2001
`Division 6A--Public examinations 1
`528A Tribunal may conduct public examination 2
`(1) The tribunal may, on the chief executive's application, conduct a 3
public examination that investigates the conduct of a marketeer to find out 4
whether the marketeer has contravened section 573A, 573B or 573C.12 5
`(2) The application may be made whether or not a marketeer proceeding 6
has been started. 7
`(3) This part applies to a public examination as if it were a hearing 8
before the tribunal. 9
`528B Procedure before public examination starts 10
`(1) Before the start of a public examination, the tribunal must be 11
satisfied each person to be examined has received in writing-- 12
(a) the grounds for the public examination; and 13
(b) if the application is based on a submission made to the chief 14
executive--a statement of the submission's substance. 15
`(2) On being satisfied under subsection (1), the tribunal must decide a 16
time and place for the public examination. 17
`(3) If a person to be examined is a corporation, for the purposes of the 18
public examination, the tribunal may give an attendance notice under 19
section 513 to an executive officer of the corporation to attend the tribunal 20
for examination.13 21
`(4) The tribunal must give an attendance notice under section 513 to 22
each person to be examined and the chief executive stating-- 23
(a) the time and place for the public examination decided by the 24
tribunal; and 25
(b) the person may make oral and written submissions at the public 26
examination. 27
12 Section 573A (Misleading conduct), 573B (Unconscionable conduct) or
573C (False representations and other misleading conduct in relation to residential
property)
13 Section 513 (Attendance notice)
s 29 21 s 29
Property Agents and Motor Dealers Amendment Bill
2001
`Division 6B--Stopping particular conduct 1
`528C Stopping particular conduct 2
`(1) This section applies if a marketeer proceeding has been started 3
against a marketeer and, on the chief executive's application, the tribunal is 4
satisfied, or is satisfied there is a reasonable suspicion, that the marketeer-- 5
(a) has contravened or is contravening section 573A, 573B or 573C; 6
or 7
(b) is likely or proposing to engage in conduct that would contravene 8
section 573A, 573B or 573C. 9
`(2) The tribunal may, by order, prohibit the marketeer from engaging in 10
conduct that, alone or together with other conduct, is a contravention of 11
section 573A, 573B or 573C, until the end of the marketeer proceeding. 12
`(3) The tribunal may make an order under this section on the chief 13
executive's application made without notice to the marketeer but, in that 14
case, the tribunal must allow the marketeer a reasonable opportunity to 15
show cause why the order should not be confirmed. 16
`(4) If the tribunal, after considering the marketeer's evidence and 17
representations, if any, and any further evidence or representations of the 18
chief executive, is not satisfied the order should continue in force, the 19
tribunal must cancel the order. 20
`(5) A person must not contravene an order under this section. 21
Maximum penalty--540 penalty units. 22
`(6) In a proceeding against a person under this Act, the making of an 23
order under this section is evidence of the facts or circumstances giving rise 24
to the making of the order. 25
`(7) An order under this section has effect on the giving of a copy of the 26
order to the marketeer.'. 27
29 Insertion of new ss 530A and 530B
Clause 28
Before section 531-- 29
insert-- 30
s 29 22 s 29
Property Agents and Motor Dealers Amendment Bill
2001
`530A Orders tribunal may make in a marketeer proceeding 1
`(1) This section applies if, in a marketeer proceeding, the tribunal is 2
satisfied a marketeer has contravened section 573A, 573B or 573C. 3
`(2) The tribunal may make 1 or more of the following orders against the 4
marketeer-- 5
(a) an order that the person pay to the chief executive, within the 6
time stated in the order, an amount of not more than the money 7
value of-- 8
(i) for an individual--200 penalty units; or 9
(ii) for a corporation--1 000 penalty units; 10
(b) an order that the person's licence or registration certificate, if any, 11
be suspended for the period stated in the order; 12
(c) an order-- 13
(i) if the person is the holder of a licence or registration 14
certificate when the order is made--that the licence or 15
registration certificate be cancelled; or 16
(ii) whether or not the person is the holder of a licence or 17
registration certificate when the order is made--that the 18
person be disqualified, for the period stated in the order, of 19
not more than 5 years, from holding a licence or registration 20
certificate; 21
(d) an order that an individual be disqualified, for the period stated in 22
the order, of not more than 5 years, from being an executive 23
officer of any corporation that holds a licence; 24
(e) an order imposing conditions on, or amending or revoking the 25
conditions of, the person's licence or registration certificate, if 26
any; 27
(f) an order prohibiting a person from being involved in any way in 28
the business of the sale, or promotion of the sale, or provision of 29
a service in connection with the sale, of residential property in 30
Queensland for the period stated in the order, of not more than 31
5 years; 32
(g) an order restricting the way the person conducts the business of 33
the sale, or promotion of the sale, or provision of a service in 34
s 29 23 s 29
Property Agents and Motor Dealers Amendment Bill
2001
connection with the sale, of residential property in Queensland 1
for the period stated in the order, of not more than 5 years; 2
(h) an order to pay to a person who has suffered financial loss, as 3
compensation, an amount, decided by the tribunal, up to the limit 4
of a Magistrates Court's civil jurisdiction; 5
(i) another order the tribunal considers appropriate to ensure the 6
person complies with this Act. 7
`(3) However, the tribunal may make an order under subsection (2)(a) or 8
(h) against a person who is not licensed or a registered employee only on 9
the basis of evidence, submissions and other information received in 10
accordance with the evidentiary law and practice applicable to a civil 11
proceeding in a Magistrates Court. 12
`(4) If-- 13
(a) the tribunal proposes to order a marketeer to pay an amount to 14
the chief executive under subsection (2)(a)(i) and compensation 15
under subsection (2)(h); and 16
(b) the marketeer does not have enough financial resources to pay 17
both; 18
the tribunal must prefer to make an order for compensation. 19
`(5) If-- 20
(a) the tribunal orders a corporation to pay an amount to the chief 21
executive under subsection (2)(a)(ii) or compensation under 22
subsection (2)(h); and 23
(b) the corporation does not have enough financial resources to pay 24
either or both; 25
the executive officers of the corporation are jointly and severally liable to 26
pay any amount not paid by the corporation. 27
`(6) It is a defence to a liability under subsection (5) for an executive 28
officer to prove that-- 29
(a) if the officer was in a position to influence the conduct of the 30
corporation in relation to the conduct in question--the officer 31
took all reasonable steps to ensure the corporation did not 32
contravene section 573A, 573B or 573C; or 33
(b) the officer was not in a position to influence the conduct of the 34
corporation in relation to the conduct in question. 35
s 30 24 s 30
Property Agents and Motor Dealers Amendment Bill
2001
`(7) For subsection (6)(a), it is sufficient for the executive officer to prove 1
that the act or omission that was the conduct in question was done or made 2
without the officer's knowledge despite the officer having taken all 3
reasonable steps to ensure the corporation did not contravene section 573A, 4
573B or 573C. 5
`530B Criteria for deciding amount to be ordered 6
`To decide the amount a person may be ordered to pay under 7
section 530A, the tribunal must consider-- 8
(a) the person's conduct before and after the contravention; and 9
(b) whether the conduct was deliberate; and 10
(c) the period over which the conduct happened; and 11
(d) the amount of financial loss caused by the contravention; and 12
(e) any similar past conduct of the person, including conduct 13
happening before the commencement of this section; and 14
(f) the person's financial position; and 15
(g) whether the conduct could have been prevented; and 16
(h) if the person is a corporation--the extent to which the executive 17
officers of the corporation knew or should have known of the 18
contravention; and 19
(i) any action the person took to remedy the contravention 20
including, for example, compensating persons who suffered 21
financial loss because of it; and 22
(j) the extent to which the person cooperated with the chief 23
executive to remedy the contravention and prevent future 24
contraventions; and 25
(k) any other relevant factor.'. 26
30 Amendment of ch 16, hdg
Clause 27
Chapter 16, heading, `AND UNDERTAKINGS'-- 28
omit, insert-- 29
`, UNDERTAKINGS, PRESERVATION OF ASSETS AND CIVIL 30
PENALTIES'. 31
s 31 25 s 31
Property Agents and Motor Dealers Amendment Bill
2001
31 Insertion of new ch 16, pts 3 and 4
Clause 1
Chapter 16-- 2
insert-- 3
`PART 3--PRESERVATION OF ASSETS 4
`572A Powers of court for preservation of assets 5
`(1) This section applies if any of the following proceedings have been 6
started against a marketeer-- 7
(a) a proceeding before the District Court for the grant of an 8
injunction; 9
(b) a proceeding before the District Court about a contravention of 10
an undertaking; 11
(c) a marketeer proceeding; 12
(d) a proceeding before the District Court under part 4 for a civil 13
penalty. 14
`(2) On the chief executive's application, the District Court may make an 15
order mentioned in subsection (3) if satisfied that-- 16
(a) it is necessary or desirable to preserve property held by or for the 17
marketeer because the marketeer is or may become liable under 18
this Act-- 19
(i) to pay an amount to the chief executive; or 20
(ii) to pay compensation; or 21
(iii) to refund an amount; or 22
(iv) to transfer, sell or return other property; and 23
(b) it will not unduly prejudice the rights and interests of any other 24
person. 25
`(3) The orders the court may make are-- 26
(a) an order prohibiting a person who owes an amount to the 27
marketeer or an associate of the marketeer from paying all or part 28
of the amount to, or to another person at the request of, the 29
marketeer or associate; and 30
s 31 26 s 31
Property Agents and Motor Dealers Amendment Bill
2001
(b) an order prohibiting a person holding property for the marketeer 1
or an associate of the marketeer from transferring all or any of 2
the property to, or to another person at the request of, the 3
marketeer or associate; and 4
(c) an order prohibiting the taking by any person of the property of 5
the marketeer or an associate of the marketeer out of the State; 6
and 7
(d) if the marketeer is an individual--an order appointing, with the 8
powers stated in the order, a receiver or trustee of all or part of 9
the property of the marketeer or an associate of the marketeer. 10
`(4) Subject to subsection (5), the order may be expressed to operate-- 11
(a) for a stated period; or 12
(b) until proceedings under any other provision of this Act in relation 13
to which the order was made have ended. 14
`(5) An application and an order may be made under this section without 15
notice to, and in the absence of, the marketeer or the associate, but in that 16
case the order must not be made for a period of more than 30 days. 17
`(6) A person to whom an order is directed under this section must 18
comply with the order. 19
Maximum penalty--540 penalty units. 20
`(7) In this section-- 21
"associate", of a marketeer, means-- 22
(a) a person holding property for the marketeer; or 23
(b) if the marketeer is a body corporate--a wholly-owned subsidiary 24
of the marketeer. 25
"prohibit" means prohibit absolutely or on conditions. 26
"request" includes direction. 27
"take" includes the following-- 28
(a) send; 29
(b) transfer. 30
"transferring" means transferring, paying or otherwise parting with 31
possession of. 32
s 31 27 s 31
Property Agents and Motor Dealers Amendment Bill
2001
`PART 4--CIVIL PENALTIES AND COMPENSATION 1
ORDERS FOR PARTICULAR CONTRAVENTIONS 2
`572B Application of pt 4 3
`This part applies if a person contravenes section 573A, 573B or 573C.14 4
`572C Application for order imposing civil penalties 5
`(1) The chief executive may apply to the District Court ("court") for an 6
order requiring the person-- 7
(a) to pay to the State a money penalty; or 8
(b) to pay to a person who suffered financial loss because of the 9
contravention an amount as compensation. 10
`(2) The application may be made together with any other application the 11
chief executive may make under this chapter. 12
`572D Orders District Court may make 13
`(1) This section applies if the court is satisfied the person has 14
contravened section 573A, 573B or 573C. 15
`(2) The court may order the person to pay to the State, as a money 16
penalty, an amount up to the limit of the court's civil jurisdiction for each 17
contravention. 18
`(3) If satisfied another person has suffered financial loss because of the 19
contravention, the court may order the person to pay to the other person, as 20
compensation, an amount, decided by the court, up to the limit of the 21
court's civil jurisdiction. 22
`(4) If-- 23
(a) the court proposes to order an individual to pay a money penalty 24
under subsection (2) and compensation under subsection (3); and 25
(b) the person does not have the resources to pay both; 26
14 Section 573A (Misleading conduct), 573B (Unconscionable conduct) or
573C (False representations and other misleading conduct in relation to residential
property)
s 31 28 s 31
Property Agents and Motor Dealers Amendment Bill
2001
the court must prefer to make an order for compensation. 1
`(5) If-- 2
(a) the court orders a corporation to pay a money penalty under 3
subsection (2) or compensation under subsection (3); and 4
(b) the corporation does not have the resources to pay either or both; 5
the executive officers of the corporation are jointly and severally liable to 6
pay any amount not paid by the corporation. 7
`(6) It is a defence to a liability under subsection (5) for an executive 8
officer to prove that-- 9
(a) if the officer was in a position to influence the conduct of the 10
corporation in relation to the conduct in question--the officer 11
took all reasonable steps to ensure the corporation did not 12
contravene section 573A, 573B or 573C; or 13
(b) the officer was not in a position to influence the conduct of the 14
corporation in relation to the conduct in question. 15
`(7) For subsection (6)(a), it is sufficient for the executive officer to prove 16
that the act or omission that was the conduct in question was done or made 17
without the officer's knowledge despite the officer having taken all 18
reasonable steps to ensure the corporation did not contravene section 573A, 19
573B or 573C. 20
`572E Criteria for deciding amount to be ordered 21
`To decide an amount a person may be ordered to pay under 22
section 572D, the court must consider-- 23
(a) the person's conduct before and after the contravention; and 24
(b) whether the conduct was deliberate; and 25
(c) the period over which the conduct happened; and 26
(d) the amount of financial loss caused by the contravention; and 27
(e) any similar past conduct of the person, including conduct 28
happening before the commencement of this section; and 29
(f) the person's financial position; and 30
(g) whether the conduct could have been prevented; and 31
s 32 29 s 34
Property Agents and Motor Dealers Amendment Bill
2001
(h) if the person is a corporation--the extent to which the executive 1
officers of the corporation knew or should have known of the 2
contravention; and 3
(i) any action the person took to remedy the contravention 4
including, for example, compensating persons who suffered 5
financial loss because of it; and 6
(j) the extent to which the person cooperated with the chief 7
executive to remedy the contravention and prevent future 8
contraventions; and 9
(k) any other relevant factor.'. 10
32 Amendment of ch 17, hdg
Clause 11
Chapter 17, heading, `OFFENCES'-- 12
omit, insert-- 13
`CONTRAVENTIONS'. 14
33 Amendment of ch 17, pt 1, hdg
Clause 15
Chapter 17, part 1, heading, `OFFENCES'-- 16
omit, insert-- 17
`CONTRAVENTIONS'. 18
34 Insertion of new ss 573A to 573E
Clause 19
After section 573-- 20
insert-- 21
`573A Misleading conduct 22
`A marketeer must not, in connection with the sale, or for promoting the 23
sale, or for providing a service in connection with the sale, of residential 24
property in Queensland, engage in conduct that is misleading or is likely to 25
mislead. 26
27
Note--
28
For remedies for a contravention, see chapter 16 (Injunctions, undertakings,
29
preservation of assets and civil penalties).
s 34 30 s 34
Property Agents and Motor Dealers Amendment Bill
2001
`573B Unconscionable conduct 1
`(1) A marketeer must not, in connection with the sale, or for promoting 2
the sale, or for providing a service in connection with the sale, of 3
residential property in Queensland, engage in conduct that is, in all the 4
circumstances, unconscionable. 5
6
Note--
7
For remedies for a contravention, see chapter 16 (Injunctions, undertakings,
8
preservation of assets and civil penalties).
`(2) Without limiting the matters to which regard may be had to decide 9
whether a marketeer has contravened subsection (1), regard may be had 10
to-- 11
(a) the relative strengths of the bargaining positions of the marketeer 12
and the buyer of the property; and 13
(b) whether, because of conduct engaged in by the marketeer, the 14
buyer was required to comply with conditions that were not 15
reasonably necessary for the protection of the legitimate interests 16
of the marketeer; and 17
(c) whether the buyer was able to understand any documents relating 18
to the sale, or promotion of the sale, or provision of a service in 19
connection with the sale, of the property; and 20
(d) whether any undue influence or pressure was exerted on, or any 21
unfair tactics were used against, the buyer or the person acting 22
for the buyer by the marketeer in connection with the marketing 23
of the property; and 24
(e) the amount for which, and the circumstances under which, the 25
buyer could have acquired an equivalent or similar property from 26
another person; and 27
(f) the extent to which the marketeer's conduct towards the buyer 28
was consistent with the marketeer's conduct in similar 29
transactions between the marketeer and other like buyers; and 30
(g) the requirements of any applicable code of conduct; and 31
(h) the extent to which the marketeer unreasonably failed to disclose 32
to the buyer-- 33
(i) any intended conduct of the marketeer that might affect the 34
interests of the buyer; and 35
s 34 31 s 34
Property Agents and Motor Dealers Amendment Bill
2001
(ii) any risks to the buyer arising from the marketeer's intended 1
conduct, if the risks are risks the marketeer should have 2
foreseen would not be apparent to the buyer; and 3
(i) the extent to which the marketeer failed to disclose to the 4
buyer-- 5
(i) any relationships of the marketeer to other marketeers in 6
connection with the sale, or for promoting the sale, or for 7
providing a service in connection with the sale, of the 8
property; or 9
(ii) anything required to be disclosed under this Act; and 10
(j) the extent to which the marketeer was unwilling to negotiate the 11
terms and conditions of any contract for the sale of the property 12
with the buyer; and 13
(k) whether or not it was reasonably practicable for the buyer to 14
negotiate for the alteration of, or to reject, any of the provisions 15
of the contract for the property; and 16
(l) whether or not the buyer or a person who represented the buyer 17
was reasonably able to protect the interests of the buyer because 18
of the age or physical or mental condition of the buyer or the 19
person who represented the buyer; and 20
(m) whether or not, and if so when, the buyer obtained, or an 21
opportunity was made available to the buyer to obtain, 22
independent legal, valuation or other expert advice; and 23
(n) the extent to which the provisions of the contract and the 24
contract's legal and practical effect were accurately explained to 25
the buyer and whether or not the buyer understood those 26
provisions and their effect; and 27
(o) whether the marketeer took measures to ensure that the buyer 28
understood the nature and implications of the transaction and, if 29
so, the adequacy of those measures; and 30
(p) whether at the time the contract was entered into, the marketeer 31
knew, or could have ascertained by reasonable inquiry of the 32
buyer at the time, that the buyer could not pay in accordance with 33
its terms or not without substantial hardship; and 34
s 34 32 s 34
Property Agents and Motor Dealers Amendment Bill
2001
(q) the extent to which the marketeer and the buyer acted in good 1
faith; and 2
(r) any other relevant factor. 3
`573C False representations and other misleading conduct 4
in relation to residential property 5
`(1) A marketeer must not, in connection with the sale, or for promoting 6
the sale, or for providing a service in connection with the sale, of 7
residential property in Queensland, represent in any way to someone else 8
anything that is false or misleading. 9
10
Note--
11
For remedies for a contravention, see chapter 16 (Injunctions, undertakings,
12
preservation of assets and civil penalties.
`(2) Without limiting subsection (1), a marketeer must not, in connection 13
with the sale, or for promoting the sale, or for providing a service in 14
connection with the sale, of residential property, or the possible sale of 15
residential property in Queensland-- 16
(a) represent that the person has a sponsorship, approval or 17
affiliation the person does not have; or 18
(b) make a false or misleading representation about-- 19
(i) the nature of the interest in the property; or 20
(ii) the price payable for the property; or 21
(iii) the location of the property; or 22
(iv) the characteristics of the property; or 23
(v) the use to which the property is capable of being put or may 24
lawfully be put; or 25
(vi) the existence or availability of facilities associated with the 26
property; or 27
(vii) the value of the property at the date of the sale; or 28
(viii)the potential income from the leasing of the property; or 29
(ix) if the property has been previously sold, the date of the sale 30
and the consideration for the sale; or 31
s 34 33 s 34
Property Agents and Motor Dealers Amendment Bill
2001
(x) how the purchase of the property may affect the incidence 1
of income taxation on the buyer; or 2
(c) offer gifts, prizes or other free items with the intention of not 3
providing them or of not providing them as offered; or 4
(d) in Queensland, do anything to cause a representation mentioned 5
in paragraph (a) or (b), or an offer mentioned in paragraph (c), to 6
be made outside Queensland. 7
8
Note--
9
For remedies for a contravention see chapter 16 (Injunctions, undertakings,
10
preservation of assets and civil penalties).
`(3) Without limiting subsection (1) or (2), a representation is taken, for 11
the subsection, to be false or misleading if it would reasonably tend to lead 12
to a belief in the existence of a state of affairs that does not in fact exist, 13
whether or not the representation indicates that state of affairs does exist. 14
`(4) Also, if a person makes a representation in relation to a matter and 15
the person does not have reasonable grounds for making the representation, 16
the representation is taken to be misleading. 17
`(5) The onus of establishing that the person had reasonable grounds for 18
making the representation is on the person. 19
`(6) It is not a defence to a proceeding for a contravention of 20
subsection (1) or (2) for the marketeer to prove that an agreement with the 21
person was terminated or that the person did not enter into an agreement 22
because of the representation. 23
`(7) This section does not limit another Act or law about false or 24
misleading representations.15 25
`(8) In this section-- 26
"false or misleading", in relation to a representation, includes the wilful 27
concealment of a material fact in the representation. 28
15 See, for example, Fair Trading Act 1989, section 40A (False representations and
other misleading or offensive conduct in relation to land--TPA s 53A) and Trade
Practices Act 1974 (Cwlth), section 53A (False representations and other
misleading or offensive conduct in relation to land).
s 35 34 s 35
Property Agents and Motor Dealers Amendment Bill
2001
`573D Application of ss 573A, 573B and 573C 1
`Sections 573A, 573B and 573C are in addition to, and do not limit, any 2
other law, written or unwritten, about conduct mentioned in them. 3
`573E Offensive conduct in relation to residential property 4
`(1) A marketeer must not unduly harass another person in connection 5
with the sale or possible sale of residential property in Queensland. 6
Maximum penalty--540 penalty units. 7
`(2) In this section-- 8
"unduly harass" includes the following-- 9
(a) the use of any physical force; 10
(b) coercion.'. 11
35 Insertion of new s 575A
Clause 12
After section 575-- 13
insert-- 14
`575A Chief executive to ask for substantiation of representations 15
made by marketeers 16
`(1) This section applies if the chief executive believes, on reasonable 17
grounds, that a marketeer has made a representation in contravention of 18
section 573C(1) or (2). 19
`(2) The chief executive may, by written notice, ask the person to give to 20
the chief executive written proof that supports the representation. 21
`(3) The notice must-- 22
(a) state a day, at least 14 days after the day the notice is given to the 23
person, by which the person must give the proof to the chief 24
executive; and 25
(b) warn the person it is an offence to fail to respond to the notice by 26
the stated day, unless the person has a reasonable excuse for the 27
failure to respond. 28
`(4) The person must respond to the notice by the stated day, unless the 29
person has a reasonable excuse for the failure to respond. 30
s 36 35 s 38
Property Agents and Motor Dealers Amendment Bill
2001
Maximum penalty--540 penalty units. 1
`(5) It is a reasonable excuse to fail to comply with subsection (4) if 2
complying with the subsection would tend to incriminate the person.'. 3
36 Amendment of s 590 (Responsibility for acts or omissions of
Clause 4
representatives) 5
Section 590(4)-- 6
insert-- 7
` "offence" includes a contravention of this Act for which an amount may 8
be ordered by the District Court or the tribunal to be paid as a money 9
penalty.'. 10
37 Amendment of s 592 (Power of court)
Clause 11
Section 592-- 12
insert-- 13
`(5) This section does not apply to an offence against section 572A(6), 14
573E(1) or 575A(4).16'. 15
38 Insertion of new s 592A
Clause 16
After section 592-- 17
insert-- 18
`592A Power of court for particular offences 19
`(1) A court may, in addition to any other penalty it may impose on a 20
person convicted of an offence against section 572A(6), 573E(1) or 21
575A(4), order that-- 22
(a) if the person is a licensee or a registered employee-- 23
(i) the licensee's licence or registered employee's registration 24
certificate be suspended for a stated period or cancelled; or 25
16 Section 572A (Powers of court for preservation of assets), 573E (Offensive conduct
in relation to residential property) or 575A (Chief executive to ask for substantiation
of representations made by marketeers)
s 39 36 s 39
Property Agents and Motor Dealers Amendment Bill
2001
(ii) the person be disqualified from holding a licence or 1
registration certificate under this Act for a stated period or 2
permanently; or 3
(b) whether or not the person is a licensee or a registered 4
employee--the person be disqualified from holding a licence or 5
registration certificate under this Act for a stated period or 6
permanently. 7
`(2) The court may also make any other order the tribunal may make in a 8
marketeer proceeding.17 9
`(3) However, if the court makes an order for compensation, the court 10
may order the payment of an amount up to the limit of the court's civil 11
jurisdiction. 12
`(4) The court may make an order under this section-- 13
(a) on the chief executive's application; or 14
(b) on its own initiative. 15
`(5) If an order is made by a court under this section on the court's own 16
initiative, the court must cause a copy of the order to be given to the chief 17
executive.'. 18
39 Amendment of sch 3 (Dictionary)
Clause 19
(1) Schedule 3, definitions "attendance notice", "contract" and 20
"property information session"-- 21
omit. 22
(2) Schedule 3-- 23
insert-- 24
` "attendance notice" means an attendance notice issued under this Act. 25
"civil jurisdiction", in relation to an amount that is the limit of a court's 26
civil jurisdiction, means an amount equal to the maximum amount 27
that may be claimed in a personal action in the civil jurisdiction of the 28
court. 29
"hearing date" means a date fixed for a hearing under this Act. 30
17 For the orders a tribunal may make, see section 530A (Orders tribunal may make in
a marketeer proceeding).
s 39 37 s 39
Property Agents and Motor Dealers Amendment Bill
2001
"marketeer"-- 1
(a) means a person directly or indirectly involved in any way in the 2
sale, or promotion of the sale, or provision of a service in 3
connection with the sale, of residential property, alone, or with 4
others under a formal or informal arrangement, and whether or 5
not-- 6
(i) the person derives a direct or indirect benefit from the sale, 7
or promotion of the sale, or provision of a service in 8
connection with the sale, of the property; or 9
(ii) the way the property is marketed includes offering potential 10
buyers of the property inducements intended to encourage 11
them to purchase the property; or 12
(iii) any of the persons is licensed or is a registered employee; or 13
(iv) the sale, or promotion of the sale, or provision of a service 14
in connection with the sale, of property is, or is part of, a 15
business the person ordinarily conducts; and 16
(b) includes a person who-- 17
(i) causes or arranges for the sale, or promotion of the sale, or 18
provision of a service in connection with the sale, of 19
residential property; or 20
(ii) provides advisory, management, legal, accounting, 21
administrative or other services in connection with the sale, 22
or for promoting the sale, or for providing a service in 23
connection with the sale, of residential property. 24
"marketeer proceeding" see section 500A. 25
"promote", the sale of residential property, means take action to increase 26
awareness of the property with a view to increasing the likelihood of 27
sale. 28
"property information session" means a presentation (however 29
described) given to 1 or more persons that has as a significant purpose 30
the purchase of residential property in Queensland by 1 or more 31
persons attending the presentation.'. 32
38
Property Agents and Motor Dealers Amendment Bill
2001
© State of Queensland 2001
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