REAL ESTATE AND BUSINESS AGENTS ACT 1978 - SECT 4
REAL ESTATE AND BUSINESS AGENTS ACT 1978 - SECT 4
4 . Terms used
(1) In this Act unless
the context otherwise requires —
agent means a person who is a real estate agent or
a business agent, or both a real estate agent and a business agent;
appointed day means the day fixed by the Minister
pursuant to subsection (2) 2 ;
approved means approved by the Commissioner;
Assistance Account means the Home Buyers
Assistance Account established under section 131B;
auditor means a person appointed under this Act to
audit the trust accounts of an agent;
bank means —
(a) an
ADI (authorised deposit-taking institution) as defined in section 5 of the
Banking Act 1959 of the Commonwealth; or
(b) a
bank constituted by a law of a State, a Territory or the Commonwealth;
business means the business of an agent but does
not have that meaning in paragraph (a) of the interpretation business
transaction and does not mean the business of a developer;
business , in paragraph (a) of the interpretation
business transaction means any commercial undertaking or enterprise in respect
of any profession, trade, employment, vocation, or calling;
business agent means a person whose business
either alone or as part of or in connection with any other business, is to act
as agent for consideration in money or money’s worth, as commission,
reward, or remuneration, in respect of a business transaction as defined by
this section, but does not include a person whose business is to so act by
reason that —
(a) he
is appointed by a court as a receiver or receiver and manager of the business
of another; or
(b) he
is an official receiver or trustee within the meaning of the
Bankruptcy Act 1966 of the Commonwealth or any Act in amendment or
substitution of that Act;
business sales representative means a person who
on behalf of an agent negotiates a business transaction irrespective of
whether or not the agent is the owner of the business involved, and includes
—
(a) a
person who does so as a member of a firm that is a licensee and the holder of
a current triennial certificate unless he is also a licensee and the holder of
a current triennial certificate;
(b) a
person who does so as a director of a body corporate that is a licensee and
the holder of a current triennial certificate, unless he is also a licensee
and the holder of a current triennial certificate;
business transaction —
(a)
means a sale, exchange or other disposal and a purchase, exchange or other
acquisition of a business and any share or interest in a business or the
goodwill thereof; and
(b)
includes any sale, exchange, or other disposal and any purchase, exchange, and
other acquisition of goods, chattels or other property relating to a business
transaction of the kind specified in paragraph (a); and
(c) also
includes an option to enter into a business transaction; but
(d) does
not include the sale, exchange, or other disposal or a purchase, exchange, or
other acquisition of a share in the capital of a body corporate carrying on a
business or an option in respect thereof;
certificate of registration means a certificate of
registration as a sales representative under this Act;
code of conduct for agents means the code of
conduct for agents prescribed and published under section 101(a);
code of conduct for sales representatives means
the code of conduct for sales representatives prescribed and published under
section 101(b);
Commissioner has the meaning given in the
Fair Trading Act 2010 section 6;
defalcation by a licensee includes criminal or
fraudulent conduct —
(a) of a
licensee; or
(b) of
any one or more of the servants or agents of the licensee; or
(c) of a
person who is a partner in the business of the licensee; or
(d)
where the licensee is a firm and a body corporate is a partner in the firm or
where the licensee is a body corporate, of any one or more of the directors,
officers, servants, or agents of the body corporate,
in the course of the business of the licensee and
from which arises pecuniary loss or loss of property to any other person;
department means the department of the Public
Service principally assisting the Minister in the administration of this Act;
developer means a person whose business either
alone or as part of or in connection with any other business, is to act on his
own behalf in respect of the sale, exchange, or other disposal of real estate;
Fidelity Account means the Real Estate and
Business Agents Fidelity Guarantee Account established under section 107;
franchising agreement means an agreement whereby a
party to the agreement grants to another party to the agreement the right or
privilege to carry on business in a manner, over a period, and in a place
specified in the agreement;
General Purpose Account means the Education and
General Purpose Account established under section 124A;
Interest Account means the Board Interest Account
established under section 125(1);
licence means the licence of an agent under this
Act;
licensed means licensed as an agent under this
Act;
licensee means a person licensed under this Act;
member —
[(a) deleted]
(b) in
Part IXA, means a member of the Advisory Committee;
real estate means land within or outside the State
and includes land of any tenure and buildings or parts of buildings within or
outside the State;
real estate agent means a person whose business
either alone or as part of or in connection with any other business, is to act
as agent for consideration in money or money’s worth, as commission,
reward or remuneration, in respect of a real estate transaction as defined by
this section but does not include a person whose business is to so act by
reason that —
(a) he
is appointed by a court as a receiver or receiver and manager of the business
of another person; or
(b) he
is an official receiver or trustee within the meaning of the
Bankruptcy Act 1966 of the Commonwealth or any Act in amendment or
substitution of that Act;
real estate sales representative means a person
who on behalf of an agent or a developer negotiates a real estate transaction
irrespective in the case of an agent of whether or not the agent is the owner
of the real estate involved, and includes —
(a) a
person who does so as a member of a firm that is a licensee and the holder of
a current triennial certificate, unless he is also a licensee and the holder
of a current triennial certificate; and
(b) a
person who does so as a director of a body corporate that is a licensee and
the holder of a current triennial certificate unless he is also a licensee and
the holder of a current triennial certificate;
real estate transaction —
(a)
means a sale, exchange, or other disposal and a purchase, exchange, or other
acquisition of real estate and any exclusive right whether deriving from the
ownership of a share or interest in a body corporate or partnership, or
otherwise, to the use or occupation of real estate including the leasing, and
letting, and the acquisition under lease or letting of tenancy or occupation
of real estate; and
(b)
includes any sale, exchange, or other disposal and any purchase, exchange, or
other acquisition of goods, chattels or other property relating to a real
estate transaction of a kind specified in paragraph (a); and
(ba)
includes the collection of rents or other payments for use or occupation; and
(c) also
includes an option to enter into a real estate transaction;
registered and registered sales representative
means registered as a sales representative under this Act;
registration means registration as a sales
representative under this Act;
renewal means a renewal of a triennial certificate
or of a certificate of registration, as the case requires;
repealed Act means the Act repealed by section 5 3
;
sales representative means a person who is a real
estate sales representative or a business sales representative, or both a real
estate sales representative and a business sales representative;
supervisor means a person appointed by the
Commissioner as supervisor of the business of an agent;
transaction means a real estate transaction or a
business transaction, or both a real estate transaction and a business
transaction;
Treasurer means the Treasurer of the State;
Treasury means the State Treasury;
triennial certificate means a certificate granted
under this Act to a licensee to carry on business as an agent.
(2) The Minister shall
by notice published in the Government Gazette fix a day to be the appointed
day 2 for the purposes of the provisions of this Act that refer to the
appointed day.
(3) The collection by
an agent for or on behalf of another person of moneys in respect of —
(a) the
consideration; or
(b) any
terms payments; or
(c) any
rent or other payment for use or occupation; or
(d) any
payments under a mortgage or other security,
relating to a
transaction is deemed to be a service rendered by the agent in his capacity as
an agent, and those moneys are deemed to be moneys received by the agent, in
the course of his business, for and on behalf of the other person in respect
of the transaction, irrespective of whether or not the agent negotiated the
transaction or participated in the negotiation thereof.
(3a) For the purposes
of this Act, moneys collected by an agent for or on behalf of a community
corporation within the meaning of the Community Titles Act 2018 or a strata
company within the meaning of the Strata Titles Act 1985 are deemed to be
moneys collected by the agent in respect of a real estate transaction.
(4) Nothing contained
elsewhere in this Act applies to or in relation to —
(a) a
body corporate authorised by the law of any State, or of a Territory, of the
Commonwealth to apply for and obtain a grant of probate of a will when
exercising its power to do so or when exercising any other power conferred on
it by such a law; or
(b) a
financial services licensee (within the meaning of the Corporations Act 2001
of the Commonwealth), when dealing in securities (within the meaning of
section 92 of that Act) that he or she is authorised to deal in by that
licence; or
(c) a
regulated principal (within the meaning of section 1430 of the
Corporations Act 2001 of the Commonwealth), when dealing in securities that he
or she is authorised to deal in by Part 10.2 Division 1 Subdivision D of that
Act; or
(d) a
person, other than a licensee, when performing a prescribed duty as an agent
for the owner of premises ordinarily used for holiday accommodation, whether
or not for consideration, in respect of the right of a person to occupy those
premises for a period of not more than 3 consecutive months.
[Section 4 amended: No. 74. of 1980 s. 3; No. 10
of 1982 s. 28; No. 29 of 1982 s. 4; No. 40 of 1985 s. 8; No. 98 of 1985 s. 3;
No. 59 of 1995 s. 4; No. 26 of 1999 s. 99(2); No. 10 of 2001 s. 222; No. 21 of
2003 s. 20; No. 65 of 2003 s. 59(2); No. 74 of 2003 s. 101; No. 69 of 2006
s. 27; No. 77 of 2006 Sch. 1 cl. 147(1); No. 21 of 2008 s. 696; No. 58 of 2010
s. 81 and 134; No. 47 of 2011 s. 25(2) and (3); No. 32 of 2018 s. 233; No. 25
of 2019 s. 39; No. 9 of 2022 s. 424.]
[ 5. Deleted: No. 58 of 2010 s. 82.]
[Heading inserted: No. 58 of 2010 s. 83.]
[Divisions 1, 1A and 2 (s. 6-18) deleted: No. 58 of 2010 s. 84.]
[Heading deleted: No. 58 of 2010 s. 85.]
[ 19-21. Deleted: No. 58 of 2010 s. 86.]