SETTLEMENT AGENTS ACT 1981 - SECT 49
SETTLEMENT AGENTS ACT 1981 - SECT 49
49 . Trust accounts etc. of licensees
(1) Every licensee who
holds a current triennial certificate shall maintain one or more trust
accounts, designated or evidenced as such in the prescribed manner and
maintained exclusively for the purposes of this Act, with an authorised
financial institution and shall, as soon as practicable, pay to the credit of
that account or those accounts all moneys received by him for or on behalf of
any other person in respect of settlements to be arranged or effected, or
arranged or effected, by the settlement agent.
(2) Moneys so paid
into any such trust account shall not be available for the payment of the debt
of any other creditor of the settlement agent, or be liable to be attached or
taken in execution under the order or process of any court at the instance of
any such creditors.
(3) A settlement agent
may pay out of a trust account such of the proper charges relating to
settlements as are payable by the persons on whose behalf the moneys are
received but may do so only when those charges lawfully fall due.
(4) Settlement moneys
received by a settlement agent in the course of arranging or effecting a
settlement shall not be withdrawn from a trust account except for the purpose
of completing the settlement, or in accordance with the contract entered into
between the parties to the transaction, or as otherwise authorised by this
Act, or by the prior written consent of all parties to the transaction
involved.
(5) A settlement agent
shall pay moneys withdrawn from a trust account to the person or persons
lawfully entitled or authorised to receive them.
(5a) If —
(a) a
settlement of a real estate transaction or a business transaction is
completed; and
(b) the
settlement agent who arranged or effected the settlement received moneys in
respect of the real estate transaction or business transaction in the course
of arranging or effecting the settlement; and
(c) the
settlement agent is authorised in writing by the vendor to make a payment from
those moneys to an agent as payment of the whole or part of the commission,
reward or remuneration to which the agent is entitled for arranging the real
estate transaction or business transaction to which the settlement relates,
the settlement agent
may, despite subsections (4) and (5), pay to the agent from those moneys such
sum as the settlement agent is so authorised to pay.
(5b) In subsection
(5a) —
agent means an agent as defined in section 4(1) of
the Real Estate and Business Agents Act 1978 who is entitled to a commission,
reward or remuneration for arranging the real estate transaction or business
transaction to which a settlement relates;
vendor means the person or persons lawfully
entitled to receive the purchase price in respect of a real estate transaction
or business transaction.
(6) A settlement agent
shall —
(a) keep
full and accurate accounts of all money received or held by him on account of
any other person and of all payments made by him of that money; and
(b)
before the end of the next business day after the day on which the money is
received or paid, enter in the accounts particulars of the amount so received
or paid and the person from whom it was so received or to whom it was so paid;
and
(c) keep
the accounts in such manner that they can be conveniently and properly
audited; and
(d)
correctly balance the accounts at the end of each month and certify in records
that this has been done.
[Section 49 amended: No. 59 of 1995 s. 67; No. 69
of 2006 s. 36.]