LAND AGENTS ACT 1994 - SCHEDULE 2A
LAND AGENTS ACT 1994 - SCHEDULE 2A
Schedule 2A—Special provisions relating to G.C. Growden Pty Ltd
eligible capital loss of an eligible claimant is the qualifying capital
investment made by the eligible claimant less any capital amount recovered by
the eligible claimant with respect to that investment before the qualifying
date and less any other amount that the eligible claimant has received or may
reasonably be expected to recover (apart from this Schedule) in reduction of
the eligible claimant's pecuniary loss;
eligible claimant means a person who—
(a) has
made a qualifying capital investment; and
(b) has
suffered pecuniary loss with respect to that investment as a result of
fiduciary default on the part of Growden Investments; and
(c) as
at the qualifying date, has been unable to recover with respect to that loss
an amount or amounts equal to or totalling the amount of the qualifying
capital investment,
but does not include a person who is (or has at any time been) an associate of
G.C. Growden Pty. Ltd.;
Fund means Part B of the indemnity fund (see section 29A);
Growden Investments means G.C. Growden Pty. Ltd. and includes any associate of
G.C. Growden Pty. Ltd. (as in existence at any time);
prescribed period means the period commencing on the day on which this
Schedule comes into operation and ending on 21 December 2004;
qualifying capital investment means—
(a) any
investment of money effected by making a payment to Growden Investments, or to
another person on the advice of Growden Investments, on or after 1 June 1995,
on the understanding that the money would be lent to a person on the security
of a mortgage; or
(b) any
reinvestment of money effected by Growden Investments, or on the advice of
Growden Investments, on or after 1 June 1995, where the money was originally
paid to Growden Investments, or invested on the advice of Growden Investments,
on the understanding that the money would be lent to a person on the security
of a mortgage (including in a case where the original payment or investment
occurred before 1 June 1995),
but does not include any investment or reinvestment of money that constitutes
trust money to which clause 2 of Schedule 2 of the Conveyancers Act 1994
applies (by virtue of the operation of clause 2(3) of that Schedule);
qualifying date means the date on which this Schedule comes into operation.
(2) For the purposes
of this clause, a person is an associate of G.C. Growden Pty. Ltd. if the
person would be an associate of that company under clause 3(2) of
Schedule 2 (assuming (if necessary for the purposes of this provision) the
continued existence of that person and that company).
(3) For the purposes
of this Schedule, a reinvestment of money within the ambit of
paragraph (b) of the definition of qualifying capital investment in
subclause (1) will be taken to be a qualifying capital investment made by
the person who originally paid or invested the money.
(4) For the purposes
of this Schedule, fiduciary default on the part of Growden Investments will be
taken to include—
(a) a
defalcation, misappropriation or misapplication of another person's money; or
(b) a
failure to disclose material facts with respect to the investment of another
person's money.
(5) If a person who
has died could reasonably be expected to have been an eligible claimant under
this Schedule were he or she still alive, the personal representative of that
person will be taken to be an eligible claimant and any compensation recovered
by the personal representative under this Schedule will be payable to the
person's estate.
2—Entitlement to claim compensation
(1) Subject to this
Schedule, an eligible claimant may claim compensation under this Schedule.
(2) A claim for
compensation under this Schedule by an eligible claimant cannot exceed the
eligible claimant's eligible capital loss.
(3) To avoid doubt, an
eligible claimant is not prevented from making a claim under this Schedule by
virtue only of the fact that he or she has made a claim under clause 2 of
Schedule 2 of the Conveyancers Act 1994 (but recognising that a claim
that gives rise to an entitlement under that clause cannot be the subject of a
successful claim under this Schedule).
3—Time within which claim must be made
(1) A claim for
compensation must be made within the prescribed period.
(2) The Commissioner
must, within 21 days after the commencement of this Schedule, by notice
published in a newspaper circulating generally throughout Australia, give
notice to persons who may qualify as eligible claimants under this Schedule
of—
(a) the
ability to make a claim under this Schedule; and
(b) the
fact that a claim for compensation must be made within the prescribed period.
(3) A claim that is
not made within the prescribed period is barred for the purposes of this
Schedule unless the Tribunal, on application, otherwise determines.
(1) A claim for
compensation under this Schedule must be made to the Commissioner in a manner
and form determined by the Commissioner.
(2) The Commissioner
may require a person making a claim—
(a) to
furnish further information specified by the Commissioner;
(b) to
verify, by statutory declaration, information furnished for the purposes of
making or establishing a claim.
(3) The Commissioner
must, as soon as practicable after the end of the prescribed period,
determine, with respect to each person who has made a claim to the
Commissioner in accordance with this Schedule—
(a)
whether the Commissioner is satisfied that the person is an eligible claimant
under this Schedule; and
(b) if
the claim is accepted on that basis, the amount of the person's eligible
capital loss for the purposes of paying compensation under this Schedule.
(4) The Commissioner
must, by notice in writing, inform each person who has made a claim of the
Commissioner's determination with respect to that person under
subclause (3).
(5) A person who is
dissatisfied with a determination with respect to the person under
subclause (3) may, within one month after receiving notice of the
Commissioner's determination, seek a review of the determination by the
Tribunal under section 34 of the South Australian Civil and
Administrative Tribunal Act 2013 .
Subject to the provisions of this Schedule, a person whose claim is accepted
is entitled to the payment of compensation under this Schedule for the
person's eligible capital loss.
(1) The payment of
compensation will be made by the Commissioner from the Fund.
(2) Unless the Fund is
sufficient to pay all eligible capital losses of all persons whose claims have
been accepted, the Commissioner must establish a scheme for the payment of
compensation under which payments are made according to the relative amount of
each entitlement.
(3) When the
Commissioner makes a payment of compensation to a person under this clause,
the Commissioner is, to the extent of the payment, subrogated to the rights of
the person against any other person liable at law or in equity for the
fiduciary default on the part of Growden Investments in respect of which the
payment is made (and any amount recovered under this right of subrogation must
be credited to the Fund).
7—Recovery of amounts from other sources
(1) If a person who is
entitled to, or who has received, a payment of compensation under this
Schedule recovers from another person or source an amount in respect of the
fiduciary default for which compensation is payable under this Schedule—
(a) the
person must immediately notify the Commissioner of the recovery of that
amount; and
(b) the
person's entitlement to compensation under this Schedule is reduced by the
amount recovered; and
(c) if
the recovery of the amount and any previous payment of compensation under this
Schedule results in the person recovering a total amount in respect of a
qualifying capital investment that exceeds the person's eligible capital loss,
then the person must immediately pay the excess to the Commissioner for
crediting to the Fund (and that excess will, until paid, be a debt due to the
Crown).
(2) A person must not
fail to comply with subclause (1)(a).
Maximum penalty: $10 000.
(1) The Commissioner
must keep proper accounts of all money received and dealt with under this
Schedule.
(2) The
Auditor-General may at any time audit those accounts and in any event must
audit those accounts as part of the annual audit of the indemnity fund under
Part 3.
(1) This Schedule will
expire on a day to be fixed by proclamation.
(2) The Governor
should not make a proclamation under subclause (1) unless or until the
Commissioner has certified that, on the Commissioner's assessment, all
eligible capital losses have been fully compensated (whether by the payment of
compensation under this Schedule or from other sources).
(3) The expiry of this
Schedule—
(a) does
not affect any right of subrogation under clause 6(3); and
(b) does
not affect any requirement to comply with clause 7(1)(a) or any right of
recovery under clause 7(1)(c),
and any such right or requirement may be exercised or enforced as if this
Schedule had not expired.
(4) Any money received
by the Commissioner after the day fixed by the Governor under
subclause (1) on account of the operation of this Schedule will be paid
into the indemnity fund.
(5) This clause is in
addition to, and does not derogate from, the provisions of the
Acts Interpretation Act 1915 .