South Australian Consolidated Acts South Australian Consolidated Acts24G—Restriction on obtaining beneficial interest where agent authorised
to sell or appraises property
(1) An agent who is
authorised by a person (the "vendor") to sell land or a business must not
obtain, or be in any way concerned in obtaining, a beneficial interest in the
land or business.
Maximum penalty: $20 000 or imprisonment for 1 year.
(2) A sales
representative employed by an agent must not obtain, or be in any way
concerned in obtaining, a beneficial interest in land or a business that the
agent is authorised to sell for a person (the
"vendor").
Maximum penalty: $20 000 or imprisonment for 1 year.
(3) An agent or sales
representative who appraises land or a business for
a person (the "vendor") must not obtain, or be in any way concerned in
obtaining, a beneficial interest in the land or business.
Maximum penalty: $20 000 or imprisonment for 1year.
(4) A person does not
contravene subsection (3) by obtaining a beneficial interest in land or a
business if an agent is acting on behalf of the vendor in the sale of the land
or business.
(5) A person does not
contravene this section by obtaining a beneficial interest in land or a
business if, before the person obtains the interest, the Commissioner approves
such action in accordance with the regulations.
(6) Without limiting
this section, a person is considered to obtain a beneficial interest in land
or a business if the person or an associate of the person obtains a beneficial
interest in the land or business.
(7) Without limiting
this section, each of the following is considered to constitute the obtaining
of a beneficial interest in land or a business:
(a)
purchasing land or a business;
(b)
obtaining an option to purchase land or a business;
(c)
being granted a general power of appointment in respect of land or a business.
(8) The court by which
a person is convicted of an offence against this section may order the person
to pay to the vendor any profit that the person has made, or is, in the
opinion of the court, likely to make, from a dealing with the land or business
to which the offence relates.
(9) If an agent
obtains a beneficial interest in land or a business that the agent is
authorised to sell, the agent must not demand, receive or retain commission or
expenses in respect of the sale or purchase of the land or business
unless—
(a) the
Commissioner has approved the agent obtaining the benefit under
subsection (5); and
(b) the
Commissioner has, when giving that approval, also approved the receipt of the
commission or expenses.
Maximum penalty: $5 000.
(10) Commission or
expenses received or retained by an agent in contravention of this section may
be recovered, as a debt, from the agent by the person by whom it was paid.
(11) In this
section—
"appraise"—an agent or sales representative appraises land or a business
if the agent or sales representative provides advice, whether or not at the
request of the vendor, as to the value of the land or business in
circumstances where it may be reasonably assumed that the vendor may rely on
the advice of the agent or sales representative;
"associate" of a person means—
(a) a
relative of the person or of the person's spouse or domestic partner; or
(b) a
body corporate where the person or a relative of the person or of the person's
spouse or domestic partner has, or 2 or more such persons together have, a
relevant interest or relevant interests in shares in the body corporate the
nominal value of which is not less than 10 per cent of the nominal value of
the issued share capital of the body corporate; or
(c) a
trustee of a trust of which the person, a relative of the person or of the
person's spouse or domestic partner or a body corporate referred to in
paragraph (b) is a beneficiary; or
(d) an
employee, employer or partner of the person; or
(e) a
person who has a relationship with the person (whether or not similar to the
relationships referred to in the preceding paragraphs) of a kind prescribed by
the regulations for the purposes of this section;
"beneficiary" of a trust includes an object of a discretionary trust;
"domestic partner" means a person who is a domestic partner within the meaning
of the Family Relationships Act 1975 , whether declared as such under
that Act or not;
"relative" of a person means the spouse, domestic partner, parent or remoter
linear ancestor, son, daughter or remoter issue or brother or sister of the
person;
"relevant interest" has the same meaning as in the Corporations Act 2001
of the Commonwealth;
"spouse"—a person is the spouse of another if they are legally married.