PROPERTY
STOCK AND BUSINESS AGENTS ACT 2002 - NSW
Pertinent
extracts from the Act:
3
Definitions
(1) In this Act:
agency
agreement means an agreement pursuant to which a licensee performs or
agrees to perform services in the capacity of a licensee.
agent
means:
(a) a real estate
agent, or
(b) a stock and
station agent, or
(c) a business agent,
or
(d) a strata managing
agent, or
(e) a community
managing agent, or
(f) an on-site
residential property manager.
auction
means the sale of property by any means (including the Internet)
whereby:
(a) the highest, the
lowest, or any bidder is the purchaser, or the
first person who claims the property submitted for sale at a certain
price named by the person acting as auctioneer is the purchaser, or
(b) there is a
competition for the purchase of the property in any way
commonly known and understood to be by auction.
auctioneer
means any person:
(a) who, in the
course of trade or business and at an auction (or a
proposed auction), acts as an auctioneer or sells for reward (whether
monetary or otherwise) any land or any livestock, or
(b) who sells or
offers for sale, or who attempts to sell, any land or
any livestock by way of auction, or
(c) who engages in
any other activity that is prescribed for the
purposes of this definition.
authorised
officer has the meaning given in Part 13 (Enforcement).
business
agent means any person (whether or not the person carries on
any other business) who for reward (whether monetary or otherwise)
carries on business as an agent for exercising any of the following
functions:
(a) selling, buying
or exchanging or otherwise dealing with or disposing
of businesses or professional practices or any share or interest in
or concerning or the goodwill of or any stocks connected with
businesses or professional practices,
(b) negotiating for
the sale, purchase or exchange or any other dealing
with or disposition of businesses or professional practices or any
share or interest in or concerning or the goodwill of or any stocks
connected with businesses or professional practices,
(c) any other
function that is prescribed by the regulations for the
purposes of this definition.
business
day means a day other than a Saturday, Sunday, public holiday
or bank holiday in New South Wales.
business
salesperson means a person (other than the holder of a
business agent’s licence) who, as an employee of a business
agent or a corporation that employs a business agent:
(a) exercises any
function of a business agent, or
(b) engages in any
other activity that is prescribed by the regulations
for the purposes of this definition.
certificate
of registration means a certificate of registration under this
Act.
community
managing agent means a person who is engaged or appointed, for
monetary or other reward, to exercise functions of an association
constituted for a scheme under the Community Land Development Act
1989, or any other function that is prescribed by the regulations for
the purposes of this definition, but does not include:
(a) the proprietor of
a lot within the scheme, or
(b) the secretary or
treasurer of the association, or
(c) a person
authorised by the management statement for the scheme to
exercise the functions of the secretary or treasurer of the
association, or
(d) a person who
maintains or repairs any property that the association
is required to maintain and keep in repair.
Compensation
Fund or Fund means the Property Services Compensation Fund
established and maintained under this Act.
Corporations
Act means the Corporations Act 2001 of the Commonwealth.
Department
means the Department of Fair Trading.
Director-General
means the Director-General of the Department.
disqualified
person has the meaning given by section 16.
employee
includes any person employed whether on salary, wages, bonus,
commission, fees, allowance or other remuneration and includes a
director or member of the governing body of a corporation.
former
licensee means a person who has been but has ceased to be a
licensee.
individual
means a natural person and does not include a corporation.
land
includes:
(a) a lot within the
meaning of the Strata Schemes (Freehold
Development) Act 1973 or the Community Land Development Act 1989 and
a leasehold interest in a lot within the meaning of the Strata
Schemes (Leasehold Development) Act 1986, and
(b) shares that,
under a company title scheme, entitle their holder to
the possession of premises.
licence
means a licence under this Act.
licensee
means the holder of a licence under this Act.
licensee’s
records has the meaning given in Part 8 (Records).
livestock
includes horses, cattle, asses, mules, sheep, swine, camels,
goats, alpacas, ostriches, emus and such other animals as may be
prescribed by the regulations.
livestock
transaction means the purchase, sale or other disposal of
livestock, whether or not an auction is involved.
money
includes an instrument for the payment of money in any case where the
instrument may be paid into a bank or other authorised deposit-taking
institution.
money
received for or on behalf of any person includes money held
for or on behalf of any person, whether originally received for or on
the person’s behalf or not.
on-site
residential property manager means a person (whether or not
the person carries on any other business) who, for reward (whether
monetary or otherwise):
(a) carries on
business as an agent for giving possession of residential
premises under a lease, licence or other contract, or
(b) carries on
business as an agent for collecting bonds, deposits,
rents, fees or other charges in connection with any such lease,
licence or other contract, or
(c) carries on any
other business that is prescribed by the regulations
for the purposes of this definition.
Note.
It is a condition of an on-site residential property manager’s
licence that the licensee may act as an on-site residential property
manager only in respect of premises at which the licensee’s
principal place of residence is situated and only if the licensee
owns or has a prescribed interest in that principal place of
residence.
principal
place of business means, in relation to a licensee carrying on
business at more than one place, the place of business specified in
the application for the licence as the licensee’s principal
place of business.
real
estate agent means a person (whether or not the person carries
on any other business) who, for reward (whether monetary or
otherwise), carries on business as an auctioneer of land or as an
agent:
(a) for a real estate
transaction, or
(b) for inducing or
attempting to induce or negotiating with a view to
inducing any person to enter into, or to make or accept an offer to
enter into, a real estate transaction or a contract for a real estate
transaction, or
(c) for the
introduction, or arranging for the introduction, of a
prospective purchaser, lessee or licensee of land to another licensed
agent or to the owner, or the agent of the owner, of land, or
(d) collecting rents
payable in respect of any lease of land and
otherwise providing property management services in respect of the
leasing of any land, or
(e) for any other
activity in connection with land that is prescribed by
the regulations for the purposes of this definition.
but
does not include a person who carries on business as an auctioneer or
agent in respect of any parcel of rural land unless the regulations
otherwise provide.
Note.
This definition is not limited to the selling of land and extends to
an agent acting on behalf of the buyer of land (a buyer’s
agent).
As
noted in section 168 of the Retirement Villages Act 1999, a selling
agent acting on the sale of residential premises in a retirement
village must be licensed as a real estate agent under this Act.
real
estate salesperson means a person (other than the holder of a
real estate agent’s licence) who, as an employee of a real
estate agent or a corporation that carries on the business of a real
estate agent:
(a) exercises any of
the functions of a real estate agent, or
(b) engages in any
other activity that is prescribed by the regulations
for the purposes of this definition.
real
estate transaction means the purchase, sale, exchange, lease,
assignment or other disposal of land, whether or not an auction is
involved.
records
includes books, accounts and other documents.
registered
community manager means a person (other than a community
managing agent holding a strata managing agent’s licence) who,
as an employee of a community managing agent or a corporation that
carries on the business of a community managing agent:
(a) exercises any of
the functions of a community managing agent, or
(b) engages in any
other activity that is prescribed by the regulations
for the purposes of this definition.
registered
manager means a registered strata manager, registered
community manager or registered on-site residential property manager.
registered
on-site residential property manager means a person (other
than the holder of an on-site residential property manager’s
licence or the holder of a real estate agent’s licence) who, as
an employee of an on-site residential property manager or a
corporation that carries on the business of an on-site residential
property manager:
(a) exercises any of
the functions of an on-site residential property
manager, or
(b) engages in any
other activity that is prescribed by the regulations
for the purposes of this definition.
registered
person means the holder of a certificate of registration under
this Act.
registered
strata manager means a person (other than the holder of a
strata managing agent’s licence) who, as an employee of a
strata managing agent or a corporation that carries on the business
of a strata managing agent:
(a) exercises any of
the functions of a strata managing agent, or
(b) engages in any
other activity that is prescribed by the regulations
for the purposes of this definition.
residential
property has the same meaning as in Division 8 of Part 4 of
the Conveyancing Act 1919.
rural
land means land that is used or apparently intended to be used
for gain or profit for grazing of livestock, dairying, poultry
farming, viticulture, orcharding, beekeeping, horticulture, the
growing of crops of any kind, vegetable growing or any other purpose
declared by the regulations to be a rural purpose.
Statutory
Interest Account means the Property Services Statutory
Interest Account referred to in Part 11.
stock
and station agent means a person (whether or not the person
carries on any other business) who, for reward (whether monetary or
otherwise), carries on business as an auctioneer of rural land or
livestock or as an agent for:
(a) doing (where the
land concerned consists of rural land) any one or
more of the things referred to in paragraphs (a)–(d) of the
definition of real estate agent, or
(b) a livestock
transaction, or
(c) inducing or
attempting to induce or negotiating with a view to
inducing any person to enter into, or to make or accept an offer to
enter into, a livestock transaction or a contract for a livestock
transaction, or
(d) providing
agistment for livestock or collecting of fees for the
agistment of livestock, or
(e) any other
activity that is prescribed by the regulations for the
purposes of this definition.
stock
and station salesperson means a person (other than the holder
of a stock and station agent’s licence) who, as an employee of
a stock and station agent or a corporation that carries on the
business of a stock and station agent:
(a) exercises any of
the functions of a stock and station agent, or
(b) engages in any
other activity that is prescribed by the regulations
for the purposes of this definition.
strata
managing agent means a person (whether or not such person
carries on any other business) who, for reward (whether monetary or
otherwise), exercises any function of an owners corporation within
the meaning of the Strata Schemes Management Act 1996 or any other
function that is prescribed by the regulations for the purposes of
this definition, not being:
(a) a person who:
(i) is the owner of a
lot to which the strata scheme for which the
owners corporation is constituted relates, or
(ii) is the lessee of
a lot to which the leasehold strata scheme for
which the owners corporation is constituted relates, or
(iii) is the
secretary or treasurer of the executive committee of the
owners corporation,
and
who exercises or performs only functions of the owners corporation
required, by the by-laws in force in respect of the strata scheme or
leasehold strata scheme for which the owners corporation is
constituted, to be exercised or performed by the secretary or
treasurer of that executive committee or of the owners corporation,
or
(b) a person who
maintains or repairs any property for the maintenance
or repair of which the owners corporation is responsible.
trust
account means a trust account required to be kept under this
Act.
(2) Where a person
carries on business as a business agent and also
carries on business as an agent for the collection of instalments of
principal or interest payable under bills of sale given in respect of
businesses or professional practices or under contracts for the sale
on terms of businesses or professional practices, a reference in this
Act to any such person acting as, or carrying on the business of, a
business agent includes a reference to that person carrying on
business as an agent for the collection of those instalments.
(3) Where a person
carries on business as a real estate agent and also
carries on:
(a) business as an
agent for the collection of instalments of principal
or interest payable under mortgages of land or under contracts for
the sale on terms of land, or
(b) business as an
agent for the collection of amounts payable in
relation to any premises to a company by a person who is the holder
of shares in the company and who, by reason of the person’s
holding those shares, is entitled to possession of those premises, or
(c) the business of
arranging for the erection of buildings for or on
behalf of other persons,
a
reference in this Act to any such person acting as, or carrying on
the business of, a real estate agent includes a reference to that
person carrying on business as an agent for the collection of those
instalments or amounts or to that person carrying on the business of
so arranging for the erection of buildings.
- Where a person
carries on business as a stock and station agent and also carries on
business as an agent for the collection of instalments of principal or
interest payable under mortgages of rural land or under contracts for
the sale on terms of any such land, a reference in this Act to any such
person acting as, or carrying on the business of, a stock and station
agent includes a reference to that person carrying on business as an
agent for the collection of those instalments.
Part
2 Licences and certificates of registration
Division
1 Requirement for licence or certificate of registration
7
(Repealed)
8
Agents required to be licensed
(1) A natural person
must not act as or carry on the business of (or
advertise, notify or state that the person acts as or carries on the
business of or is willing to act as or carry on the business of):
(a) a real estate
agent, unless the person is the holder of a real
estate agent’s licence, or
(b) a stock and
station agent, unless the person is the holder of a
stock and station agent’s licence, or
(c) a business agent,
unless the person is the holder of a business
agent’s licence, or
(d) a strata managing
agent or community managing agent, unless the
person is the holder of a strata managing agent’s licence, or
(e) an on-site
residential property manager, unless the person is the
holder of an on-site residential property manager’s licence.
Maximum
penalty: 100 penalty units.
(2) A natural person
is not entitled to bring any proceeding in any
court or tribunal to recover any commission, fee, gain or reward for
any service performed by the person:
(a) as a real estate
agent, unless the person was the holder of a real
estate agent’s licence, or employed the holder of such a
licence, at the time of performing the service, or
(b) as a stock and
station agent, unless the person was the holder of a
stock and station agent’s licence, or employed the holder of
such a licence, at the time of performing the service, or
(c) as a business
agent, unless the person was the holder of a business
agent’s licence, or employed the holder of such a licence, at
the time of performing the service, or
(d) as a strata
managing agent or as a community managing agent, unless
the person was the holder of a strata managing agent’s licence,
or employed the holder of such a licence, at the time of performing
the service, or
(e) as an on-site
residential property manager, unless the person was
the holder of an on-site residential property manager’s licence
or a real estate agent’s licence, or employed the holder of
such a licence, at the time of performing the service.
(3) This section
applies to a natural person whether or not the person
is a member of a partnership.
(4) The fact that a
particular activity is an activity for which more
than one class of licence may be appropriate does not require the
holding of more than one class of licence so long as at least one of
the licences that is appropriate to the activity is held.
(5) For the purposes
of this section, a person is not considered to
carry on a business merely because the person is a member of a
partnership that carries on that business.
Note.
Subsection (5) makes it clear that “silent” partners are
not required to be licensed.
9
Corporations require corporation licence
(1) A corporation
must not act as or carry on the business of (or
advertise, notify or state that the corporation acts as or carries on
the business of or is willing to act as or carry on the business of)
an agent unless the corporation holds a corporation licence.
Maximum
penalty: 200 penalty units.
(2) A corporation is
not entitled to bring any proceeding in any court
to recover any commission, fee, gain or reward for any service
performed by the corporation as an agent unless the corporation was
the holder of a corporation licence at the time of performing the
service.
10
Salespersons and managers require certificate of registration
(1) A person must not
do any of the following things unless the person
is the holder of a certificate of registration:
(a) be or remain as a
real estate salesperson, stock and station
salesperson, business salesperson or registered manager in the
employment of a person licensed (or required to be licensed) under
this Act,
(b) represent,
whether expressly or impliedly, that the person is a real
estate salesperson, stock and station salesperson, business
salesperson or registered manager in the employment of a person
licensed (or required to be licensed) under this Act,
(c) act as or
exercise any of the functions of a real estate
salesperson, stock and station salesperson, business salesperson or
registered manager.
Maximum
penalty: 100 penalty units.
(2) An employed
licensee is not required to hold both a certificate of
registration and a licence to allow the licensee lawfully to do
anything that, in the absence of this section, the licensee could
lawfully do as the holder of the licence.
11
Registered salespersons and managers required to be employed and
supervised by licensee
(1) The holder of a
certificate of registration must not act as or
exercise any of the functions of a real estate salesperson, stock and
station salesperson, business salesperson or registered manager
unless the person does so as an employee of the holder of a licence
under this Act.
(2) The holder of a
certificate of registration must not exercise any of
the functions of a real estate salesperson, stock and station
salesperson, business salesperson or registered manager unless he or
she does so under the supervision of a person who:
(a) is the licensee
in charge of the place of business at which the
employee is employed, and
(b) is the holder of
a licence that allows the licensee to exercise that
function without contravening this Act.
(3) The holder of a
certificate of registration must not act as an
auctioneer.
(4) Despite
subsection (3), the holder of a certificate of registration
as a stock and station salesperson may auction livestock if the
holder conducts the auction as an employee, and under the immediate
and direct supervision, of the holder of the appropriate licence (as
referred to in subsections (1) and (2)).
Maximum
penalty: 50 penalty units.
21
Special condition requiring auctioneers to be accredited
(1) Every real estate
agent’s licence and stock and station
agent’s licence is subject to the condition that the holder of
the licence must not act as an auctioneer unless the licensee is
accredited as an auctioneer under this section.
(2) The
Director-General may accredit the holder of a real estate
agent’s licence or stock and station agent’s licence as
an auctioneer if the Director-General is satisfied that the holder
has such qualifications in connection with the conduct of auctions
and the functions of auctioneers as the Director-General may approve
from time to time by order published in the Gazette.
(3) Without limiting
the Director-General’s power to approve
qualifications, the Director-General may approve qualifications by
reference to any one or more of the following:
(a) the completion of
a course of study,
(b) the completion of
a period of training in a particular activity,
- the attainment
of a standard of competency in a particular activity.
28
Registered office and address
(1) A licensee must
have a registered office within New South Wales.
(2) A licensee who
carries on the business of an agent pursuant to a
licence or other authorisation under the laws of another State at an
office (the interstate office) that is within 50 kilometres of New
South Wales may have the licensee’s registered office at the
interstate office (even though it is not in New South Wales). The
powers of an authorised officer under this Act may be exercised at
the interstate office.
(3) The address
specified in an application for a licence as the address
at which the applicant proposes to carry on business (or, in the case
of a licensee carrying on business at more than one place, the
address specified in the application as the licensee’s
principal place of business) is taken to be the registered office of
the licensee.
(4) Notice of any
change in the location of the registered office must
be lodged by the licensee with the Director-General within the time
prescribed by the regulations.
Maximum
penalty: 50 penalty units.
29
Display of name at registered office
(1) A licensee must
display legibly and conspicuously outside the
licensee’s registered office and any other place at which the
licensee’s business as a licensee is carried on:
(a) the licensee’s
name and description as a licensee, and
(b) a description of
the kind of licence or licences held by the
licensee.
(2) In addition, a
licensee that is a corporation must display legibly
and conspicuously:
(a) outside the
corporation’s registered office, the name of the
person in charge of the corporation’s registered office, and
(b) outside any other
place at which the business of the corporation is
carried on, the name of the person in charge at that place.
(3) A person must not
display or exhibit outside or near the person’s
office, house or place of business any sign or other matter that
indicates or implies that the office, house or place of business is
that of a person licensed as a kind of agent under this Act unless
the person is licensed as an agent of that kind.
Maximum
penalty: 50 penalty units.
30
Business names
(1) A licensee must
not, either alone or together with other persons,
carry on business as a licensee under a name or advertise or hold out
that the licensee carries on business as a licensee under a name
unless:
(a) the name consists
of the name of the licensee and the name of each
other person, if any, with whom the licensee is carrying on, or
advertising or holding out that the licensee is carrying on, business
as a licensee, or
(b) the name is a
business name registered under the Business Names Act
2002 in relation to the licensee and each other person, if any, with
whom the licensee is carrying on, or advertising or holding out that
the licensee is carrying on, business as a licensee.
Maximum
penalty: 50 penalty units.
(2) The name of a
licensee (other than a corporation) consists of the
licensee’s full name, or the licensee’s surname (or
family name) together with:
(a) the licensee’s
other name or names, or
(b) the initial or
initials of the licensee’s other name or names,
or
(c) a combination of
one or more of the licensee’s other name or
names and the initial or initials of the licensee’s remaining
other name or names, or
(d) the other name or
names by which the licensee is commonly known or
the initial or initials by which the licensee is commonly known or
any combination of one or more of those names or initials.
(3) The name of a
licensee that is a corporation consists of the
corporate name of the corporation.
(4) The
Director-General may, by notice in writing to a licensee, direct
that the licensee must not carry on business under a specified
business name, being a name that:
(a) is the same as,
or is a name closely resembling, the name under
which a person who is a disqualified person or whose licence has been
cancelled under or in pursuance of this Act was carrying on business
immediately before the person became a disqualified person or the
person’s licence was cancelled, or
(b) implies or is
capable of being construed as implying that the
licensee is the successor in the business, or in any way interested
or concerned in continuing the business as a licensee, of a person
who is a disqualified person or whose licence has been cancelled
under or in pursuance of this Act, or
(c) is, in the
opinion of the Director-General and in the circumstances
of any particular case, undesirable as being contrary to the public
interest.
(5) A licensee must
not contravene a direction under subsection (4).
Maximum
penalty: 50 penalty units.
(6) This section does
not affect the Business Names Act 2002.
Division
2 Business practices and supervision
31
Each place of business to be in charge of licensee
(1) An individual who
carries on business under a licence at more than
one place of business must employ at each of those places of business
(except the place at which the licensee is personally in charge) as
the person in charge of business at that place a person who is the
holder of a licence that an individual is required to hold to carry
on that business.
(2) A corporation
that holds a corporation licence must employ as the
person in charge at each place of business at which the corporation
carries on business under the licence a person who is the holder of a
licence that an individual is required to hold to carry on that
business.
(3) A licensee must
not employ a person to be the person in charge of
business at a place of business of the licensee if the person is also
employed to be the person in charge of business at another place of
business of the licensee or at a place of business of another
licensee.
(4) A person employed
as the person in charge of business at a place of
business of a licensee must not exercise functions or provide
services on behalf of 2 or more licensees at that place (whether
corporations or individuals) unless those licensees are in
partnership.
(5) The
Director-General may grant a person an exemption from a
provision of this section. The exemption may be granted
unconditionally or subject to conditions. The Director-General may at
any time by notice in writing to a person granted an exemption revoke
the exemption or vary the conditions of the exemption.
(6) The regulations
may specify the matters to be taken into account by
the Director-General in considering whether to grant a person an
exemption from a provision of this section.
Maximum
penalty:
(a) 200 penalty units
in the case of a corporation, or
(b) 100 penalty units
in any other case.
32
Duty of licensee and person in charge to properly supervise
business
(1) A licensee must
properly supervise the business carried on by the
licensee.
(2) A licensee
employed by another licensee (the principal licensee) as
the person in charge of business at a place of business of the
principal licensee must properly supervise the business of the
principal licensee carried on at that place.
(3) The requirement
to properly supervise the conduct of business
includes the following requirements:
(a) a requirement to
properly supervise employees engaged in the
business,
(b) a requirement to
establish procedures designed to ensure that the
provisions of this Act and any other laws relevant to the conduct of
that business are complied with,
(c) a requirement to
monitor the conduct of business in a manner that
will ensure as far as practicable that those procedures are complied
with.
(4) The
Director-General may from time to time issue and notify to
licensees guidelines as to what constitutes the proper supervision of
the business of a licensee. A failure to comply with the requirements
of any such guidelines in connection with the supervision of a
business constitutes a failure to properly supervise the business.
Maximum
penalty:
(a) 200 penalty units
in the case of a corporation, or
(b) 100 penalty units
in any other case.
33
Licensee not to share commission with certain persons
(1) A licensee must
not enter into an arrangement with or act in
conjunction with a person that the licensee knows to be an unlicensed
person (other than an employee in the licensee’s business as a
licensee) whereby the unlicensed person is entitled to a share of the
commission, fee, gain or reward payable to the licensee in respect of
any transaction by or with him or her as a licensee or generally.
Maximum
penalty:
(a) 100 penalty units
in the case of a corporation, or
(b) 50 penalty units
in any other case.
(2) In this section:
corresponding
Act means an Act of another State or a Territory that is
declared by the regulations to be a corresponding Act for the
purposes of this section.
unlicensed
person means a person who is not licensed under this Act or a
corresponding Act.
34
Non-commercial subagency agreements to be in writing
(1) An agreement
between licensees to share any commission, fee, gain or
reward paid or payable to a licensee in respect of any services
performed by him or her as a licensee is unenforceable unless the
agreement is in writing, is signed by the licensees and contains such
terms (if any) as may be prescribed by the regulations.
(2) Any provision in,
or applying to, such an agreement and purporting
to exclude, modify or restrict the operation of the terms (if any)
required by this section to be contained in the agreement has no
force or effect.
(3) A licensee who
enters into an agreement a provision of which is
unenforceable because of this section is guilty of an offence.
Maximum
penalty: 50 penalty units.
(4) This section does
not apply to:
(a) an agreement
between licensees who are in partnership with one
another or in the relationship of employer and employee with one
another, or
(b) an agreement,
transaction, circumstance or person prescribed by the
regulations as exempt from this section or an agreement, transaction,
circumstance or person of a class or description prescribed by the
regulations as exempt from this section, or
- an agreement in
respect of services relating to commercial land, being land used or
intended to be used solely or principally for commercial, business or
industrial purposes, but not including land used or intended to be used
solely or principally for agricultural or pastoral purposes.
37
Rules of conduct for licensee’s business
The
regulations may prescribe rules of conduct to be observed in the
course of the carrying on of business or the exercise of functions
under a licence or certificate of registration.
Note.
Part 12 (Complaints and disciplinary action) provides that a
contravention of a provision of the regulations is grounds for taking
disciplinary action against a person.
Division
4 Conflicts of interest
46
Financial and investment advice by real estate agents
(1) The regulations
may make provision for or with respect to requiring
a real estate agent who provides financial or investment advice to a
person in connection with the sale or purchase of land to provide to
the person specified information or warnings.
(2) A real estate
agent who fails to comply with a requirement of the
regulations under this section is guilty of an offence.
Maximum
penalty: 200 penalty units.
47
Duty of disclosure to client and prospective buyer of land
(1) A buyer’s or
seller’s agent acting on the sale or
purchase of land must disclose the following to the person for whom
the agent is acting (the client) and (in addition, in the case of the
seller’s agent) any prospective buyer of the land:
(a) any relationship,
and the nature of the relationship (whether
personal or commercial), the agent has with anyone to whom the agent
refers the client or a prospective buyer for professional services
associated with the sale or purchase,
(b) whether the agent
derives or expects to derive any consideration,
whether monetary or otherwise, from a person to whom the agent has
referred the client or a prospective buyer and, if so, the amount or
value of the consideration,
(c) the amount, value
or nature of any benefit any person has received,
receives, or expects to receive in connection with the sale or
purchase, or for promoting the sale or purchase, or for providing a
service in connection with the sale or purchase, of the land.
Note.
The following are examples of relationships for the purposes of
subsection (1) (a):
(a) a family
relationship,
(b) a business
relationship, other than a casual business relationship,
(c) a fiduciary
relationship,
(d) a relationship in
which 1 person is accustomed, or obliged, to act
in accordance with the directions, instructions, or wishes of the
other.
The
following are examples for the purposes of subsection (1) (c) of
persons who may receive a benefit:
(a) seller,
(b) finance broker,
(c) financial adviser,
(d) financier,
(e) property valuer,
(f) legal
practitioner,
(g) real estate agent.
Maximum
penalty: 200 penalty units.
(2) Disclosure to a
person is effective for the purposes of subsection
(1) only if:
(a) it is given to
the person in a form approved by the
Director-General, and
(b) it is
acknowledged by the person in writing on the form, and
(c) it is given and
acknowledged before a contract for the sale of the
residential property is entered into.
(3) In this section:
benefit
means monetary or other benefit.
buyer’s
agent means:
(a) a real estate
agent acting for a buyer of land, or
(b) a real estate
salesperson acting for that real estate agent.
seller’s
agent means:
(a) a real estate
agent acting for the vendor of land, or
(b) a real estate
salesperson acting for that real estate agent.
48
Duty not to act for both buyer and seller of land
(1) A licensee must
not act in his or her capacity as licensee on behalf
of both the buyer and the seller of land at the same time.
(2) A licensee must
not enter into agency agreements in respect of the
purchase or sale of land if the performance of services by the
licensee under the agreements will or can result in the licensee
acting in his or her capacity as licensee on behalf of both the buyer
and the seller of the land at the same time.
Maximum
penalty:
(a) 200 penalty units
in the case of a corporation, or
(b) 100 penalty units
in any other case.
49
Restrictions on licensee obtaining beneficial interest in property
(1) A real estate
agent who is retained by a person (the client) as an
agent for the sale of property must not obtain or be in any way
concerned in obtaining a beneficial interest in the property.
Maximum
penalty: 200 penalty units or imprisonment for 2 years, or both.
(2) A real estate
salesperson employed by the real estate agent must not
obtain or be in any way concerned in obtaining a beneficial interest
in the property.
Maximum
penalty: 200 penalty units or imprisonment for 2 years, or both.
(3) A person does not
contravene this section by obtaining a beneficial
interest in property if:
(a) before the person
obtains the interest, the client consents in
writing in a form approved by the Director-General to the person
obtaining the interest, and
(b) the person acts
fairly and reasonably in relation to the obtaining
of the interest, and
(c) no commission or
other reward is payable to the person in relation
to the transaction by which the interest is obtained, unless the
client consents in writing in a form approved by the Director-General
to the commission or other reward being paid.
(4) Without limiting
this section, a person is considered to obtain a
beneficial interest in property if:
(a) the person or a
close relative of the person obtains a beneficial
interest in the property, or
(b) a corporation
having not less than 100 members and of which the
person or a close relative of the person is a member, or a subsidiary
of such a corporation, obtains a beneficial interest in the property,
or
(c) a corporation of
which the person or a close relative of the person
is an executive officer obtains a beneficial interest in the
property, or
(d) the trustee of a
discretionary trust of which the person or a close
relative of the person is a beneficiary obtains a beneficial interest
in the property, or
(e) a member of a
firm or partnership of which the person or a close
relative of the person is also a member obtains a beneficial interest
in the property, or
(f) the person or a
close relative of the person has, directly or
indirectly, a right to participate in the income or profits of a
business carried on for profit or gain and another person carrying on
that business obtains a beneficial interest in the property.
(5) Without limiting
this section, each of the following is considered
to constitute the obtaining of a beneficial interest in property:
(a) purchasing
property,
(b) obtaining an
option to purchase property,
(c) being granted a
general power of appointment in respect of property.
(6) In this section:
close
relative of a person means:
(a) a spouse of the
person, or
(b) a de facto
partner who is living or has lived with the person as the
person’s husband or wife on a bona fide domestic basis although
not married to the person, or
(c) a child,
grandchild, sibling, parent or grandparent of the person,
whether derived through paragraph (a) or (b) or otherwise, or
(d) any other person
who has a relationship with the person that is
prescribed by the regulations as constituting the relationship of
close relative for the purposes of this section.
property
includes an interest in property.
Division
5 Advertisements and representations
50
Advertisements to include information about licensee
(1) A licensee must
not publish (in a newspaper or otherwise) an
advertisement relating to or in connection with the licensee’s
business unless the advertisement includes the following:
(a) if the licensee
is an individual carrying on business in the
licensee’s own name and is not a member of a partnership—the
licensee’s name,
(b) if the licensee
is an individual carrying on business under a
business name registered under any Act relating to the registration
of business names—either the licensee’s name or that
business name,
(c) if the licensee
carries on business as a member of a
partnership—either the licensee’s name or the name of the
partnership, or the name under which the partnership is registered
under any Act relating to the registration of business names,
(d) if the licensee
is a corporation and the corporation is carrying on
business in its own name—the name of the corporation,
(e) if the licensee
is a corporation and the corporation is carrying on
business under a business name registered under any Act relating to
the registration of business names—either its own name or that
business name.
(2) If a licensee has
an interest in any real or personal property as a
principal, the licensee must not publish an advertisement relating to
or in connection with the property in a newspaper or otherwise
without disclosing that interest in the advertisement.
Maximum
penalty: 100 penalty units.
51
Publishing false or misleading advertisements
(1) A licensee must
not publish or cause to be published in the course
of carrying on business as a licensee any statement that:
(a) is intended or
apparently intended by the licensee to promote the
sale or lease of any property, and
(b) is materially
false, misleading or deceptive (whether to the
licensee’s knowledge or not).
Maximum
penalty: 200 penalty units.
(2) Without limiting
the generality of subsection (1), a statement is
taken to be false or misleading for the purposes of this section if
it is of such a nature that it would reasonably tend to lead to a
belief in the existence of a state of affairs that does not in fact
exist, whether or not the statement indicates that the state of
affairs does exist.
(3) A statement is
published if it is:
(a) inserted in any
newspaper, periodical publication or other
publication, or
(b) publicly
exhibited in, on, over or under any building, vehicle or
place (whether or not a public place and whether on land or water),
or in the air in view of persons being or passing in or on any street
or public place, or
(c) contained in any
document gratuitously sent or delivered to any
person or thrown or left upon premises in the occupation of any
person, or
(d) broadcast by
radio or television, or
(e) disseminated by
means of an Internet website or electronic mail.
(4) It is a defence
to a prosecution against a person for an offence
under this section if the person proves that:
(a) the person took
all reasonable precautions against committing the
offence, and
(b) the person
believed on reasonable grounds that the statement was
true or (in the case of a statement that would reasonably tend to
lead to a belief in the existence of a state of affairs that does not
in fact exist) the person believed on reasonable grounds that the
state of affairs existed, and
(c) the person had no
reason to suspect that the statement was false or
misleading.
(5) Despite any
proceedings against a person for an offence under this
section (whether resulting in a conviction or otherwise) the person
remains liable to all civil proceedings as if the proceedings for an
offence had not been taken.
(6) This section is
to be read as being in addition to and not in
derogation from any enactment or law relating to false or misleading
advertisements or other statements.
52
Misrepresentation by licensee or registered person
(1) A person who,
while exercising or performing any function as a
licensee or registered person, by any statement, representation or
promise that is false, misleading or deceptive (whether to the
knowledge of the person or not) or by any concealment of a material
fact (whether intended or not), induces any other person to enter
into any contract or arrangement is guilty of an offence against this
Act.
Maximum
penalty: 200 penalty units.
(2) Without limiting
the generality of subsection (1), a statement,
representation or promise is taken to be false, misleading or
deceptive if it is of such a nature that it would reasonably tend to
lead to a belief in the existence of a state of affairs that does not
in fact exist, whether or not the statement, representation or
promise indicates that the state of affairs does exist.
(3) It is a
sufficient defence to a prosecution for an offence under
this section if the defendant proves that the defendant did not know,
and had no reasonable cause to suspect, that the statement,
representation or promise was false, misleading or deceptive.
53
Damages for misrepresentation or concealment
No
term or provision of any agreement (whether entered into before or
after the commencement of this section) for the sale and purchase of
land or any interest in land operates to prevent the purchaser from
claiming or being awarded damages or any other relief in respect of
any misrepresentation or concealment in connection with the sale and
purchase of the land or interest.
Part
4 Agency agreements
Division
1 Requirements for agency agreements
54
Definitions
In
this Division:
commission
means remuneration by way of commission, fee, gain or reward for
services performed by a licensee in the capacity of licensee.
expenses
means any sum or reimbursement for expenses or charges
incurred in connection with services performed by a licensee in the
capacity of licensee.
55
No entitlement to commission or expenses without agency agreement
(1) A licensee is not
entitled to any commission or expenses from a
person for or in connection with services performed by the licensee
in the capacity of licensee for or on behalf of the person unless:
(a) the services were
performed pursuant to an agreement in writing (an
agency agreement) signed by or on behalf of:
(i) the person, and
(ii) the licensee, and
(b) the agency
agreement complies with any applicable requirements of
the regulations, and
(c) a copy of the
agency agreement signed by or on behalf of the
licensee was served by the licensee on that person within 48 hours
after the agreement was signed by or on behalf of the person.
(2) The regulations
may make provision for or with respect to regulating
the form of agency agreements and the terms, conditions and other
provisions that an agency agreement must or must not contain. Without
limiting this subsection, the regulations may prescribe one or more
standard forms of agency agreement.
(3) Without limiting
the means by which a copy of the agency agreement
may be served on a person, it may be served by means of facsimile
transmission or by such other means as the regulations may allow.
(4) A court or
tribunal before which proceedings are taken by a licensee
for the recovery of commission or expenses from a person, or before
which a licensee is a respondent to a consumer claim relating to
commission or expenses (as referred to in section 36), may order that
the commission or expenses concerned are wholly or partly recoverable
despite a failure by the licensee to serve a copy of the relevant
agency agreement on the person within 48 hours after it was signed by
or on behalf of the person.
(5) A court or
tribunal is not to make such an order unless satisfied
that:
(a) the failure to
serve a copy of the agreement within the required
time was occasioned by inadvertence or other cause beyond the control
of the licensee, and
(b) the commission or
expenses that will be recoverable if the order is
made are in all the circumstances fair and reasonable, and
(c) failure to make
the order would be unjust.
56
Approved guide to be provided before agency agreement for
residential property signed
(1) A real estate
agent must not enter into an agency agreement with a
person for the sale of residential property unless the agent has
provided the person with a copy of the approved guide not more than 1
month before the agreement is signed by or on behalf of the person.
Maximum
penalty: 40 penalty units.
(2) In this section:
approved
guide means a guide with respect to the sale of residential
property approved by the Director-General from time to time for the
purposes of this section.
- A contravention
of this section does not affect the validity of the agency agreement.
-
57
Agency agreement must disclose rebates, discounts and commissions
(1) A licensee is not
entitled to any expenses from a person for or in
connection with services performed by the licensee in the capacity of
licensee for or on behalf of the person in connection with a real
estate transaction unless the agency agreement pursuant to which the
licensee performs those services contains a statement:
(a) identifying the
source of all rebates, discounts or commissions that
the licensee will or may receive in respect of those expenses, and
(b) specifying the
estimated amount of those rebates, discounts or
commissions (to the extent that the amount can reasonably be
estimated).
(2) This section does
not apply in respect of a real estate transaction
relating to commercial land, being land used or intended to be used
solely or principally for commercial, business or industrial
purposes, but not including land used or intended to be used solely
or principally for agricultural or pastoral purposes.
58
Prohibition against listing residential or rural land subject to
sole or exclusive agency
(1) A licensee must
not enter into an agency agreement with a person in
respect of the sale or purchase of residential property or rural land
by the person if:
(a) the agreement
provides for an entitlement to commission in respect
of services to be provided at a time when the property or land is or
is to be the subject of a sole agency agreement or exclusive agency
agreement with another licensee for the provision of those services,
and
(b) the licensee
knows or has reasonable cause to suspect that the
person has entered into that sole agency agreement or exclusive
agency agreement.
(2) A licensee must
not solicit or encourage a person to enter into an
agency agreement with the licensee if the licensee is prohibited from
entering into the agreement by this section.
Maximum
penalty:
(a) 200 penalty units
in the case of a corporation, or
(b) 100 penalty units
in any other case.
(3) A licensee is not
entitled to any commission or expenses from a
person for or in connection with services performed by the licensee
pursuant to an agency agreement entered into by the licensee in
contravention of this section.
(4) In this section:
commission
includes fee, gain and reward.
exclusive
agency agreement means an agency agreement under which an
agent agrees to act for the seller or buyer (the client) on the sale
or purchase of property and that provides for the agent to be
entitled to commission on the happening of an event whether or not
the agent is the effective cause of the happening of the event and
whether or not the client is the effective cause of the happening of
the event.
sole
agency agreement means an agency agreement under which an
agent agrees to act for the seller or buyer (the client) on the sale
or purchase of property and that provides for the agent to be
entitled to commission on the happening of an event (whether or not
the agent is the effective cause of the happening of the event)
unless the client is the effective cause of the happening of the
event.
Division
2 Cooling-off period for residential or rural agency agreements
59 Cooling-off period
for residential or rural agency agreements
(1) There is to be a
cooling-off period for every agency agreement in
respect of the sale of residential property or rural land.
(2) The cooling-off
period commences when the agency agreement is signed
and ends at 5 pm on the next day that is a business day or a
Saturday.
(3) An agency
agreement is signed when it is signed by or on behalf of
the person (the client) for whom services are to be performed under
the agreement. If there is more than one client, the agreement is
signed when the last client to sign signs the agreement.
(4) The cooling-off
period may be extended by a provision of the agency
agreement, or by the agent in writing before the end of the
cooling-off period.
(5) There is no
cooling-off period if:
(a) at least 1
business day before the client signs the agency agreement
the agent provides the client with a copy of the proposed agency
agreement together with (in the case of an agreement that relates to
residential land) a copy of a consumer guide approved by the
Director-General from time to time for the purposes of this section,
and
(b) before the client
signs the agency agreement the client signs a form
of waiver of cooling-off period in a form approved by the
Director-General by order published in the Gazette.
60
Agency agreement can be rescinded during cooling-off period
(1) The client can
rescind an agency agreement by serving a notice of
rescission on the agent under the agreement during the cooling-off
period for the agreement.
(2) To be effective,
the notice of rescission must:
(a) be in writing
addressed to the agent and be to the effect that the
client rescinds the agreement, and
(b) be signed by the
client or the client’s solicitor or, if there
is more than one client, by each client or their respective
solicitors, and
(c) be served on the
agent in one of the ways provided for by this
section.
(3) A notice of
rescission may be served on an agent in any of the
following ways:
(a) by being given to
the agent personally,
(b) by being
delivered to or left at a place of business of the agent or
at any other address specified in the agency agreement as a place
where a notice of rescission may be given,
(c) by facsimile
transmission.
61
Effect of rescission
(1) On service of a
notice of rescission, the agency agreement is taken
to be rescinded from the time it was entered into.
(2) Neither the agent
nor the client is liable to pay any sum for
commission, damages, costs or expenses for or in connection with the
agency agreement or its rescission.
(3) The agent must
refund to the client any money paid to the agent
under a rescinded agency agreement.
62
No contracting out
A
provision of an agency agreement or any other agreement or
arrangement is void to the extent that it would (but for this
section) have the effect of excluding, modifying or restricting the
operation of this Division.
Part
5 Residential property and rural land sales
Division
1 Contract for sale of residential property
63
Proposed contract for sale of residential property
(1) In this section:
purchaser
includes a grantee of an option.
(2) A real estate
agent must not offer residential property for sale
unless the required documents are all available for inspection at the
real estate agent’s registered office by a prospective
purchaser or agent for a prospective purchaser at all times at which
an offer to purchase the property may be made (or at such other place
or at such other times as may be prescribed by the regulations).
(3) A real estate
agent is considered to offer residential property for
sale when the agent, expressly or by implication:
(a) indicates that
residential property is for sale or is to be
auctioned at any future time, or
(b) offers to sell
residential property, or
(c) invites an offer
to purchase residential property, or
(d) indicates that a
person may be willing to grant an option to
purchase residential property.
(4) The required
documents for the purposes of this section are:
(a) a copy of the
proposed contract for the sale of the property
(excluding particulars of the purchaser and purchase price), and
(b) the documents
required by section 52A of the Conveyancing Act 1919
to be attached to the contract before signature by the purchaser, and
(c) in the case of an
option to purchase residential property—a
copy of the proposed option document (excluding particulars of the
purchaser and consideration for the option).
(5) Without limiting
this section, a real estate agent is taken to
indicate that residential property is for sale if the real estate
agent does any of the following or causes or permits any of the
following to be done:
(a) advertises or
promotes the property in any way that, in the
circumstances, may reasonably be taken to indicate that the property
is or may be for sale,
(b) places a sign on
or near the property that, in the circumstances,
may reasonably be taken to indicate that the property is or may be
for sale,
(c) advertises or in
any way gives notice that the property is to be
auctioned at any future time,
(d) places on display
particulars or a description of, or a photograph,
drawing or other representation of, the property in or on any
premises, vehicle or place where the real estate agent conducts
business as a real estate agent,
(e) shows the
property to a prospective purchaser or gives the address
of the property to a prospective purchaser.
(6) This section does
not apply to anything done by a real estate agent
when acting on behalf of a prospective purchaser of residential
property.
(7) The regulations
may create exceptions to this section.
Maximum
penalty: 100 penalty units.
64
Contracts for sale of residential property
(1) A real estate
agent may do any of the following:
(a) fill up a
proposed contract for the sale of residential property, by
inserting details of the purchaser’s name, address and
description, the purchaser’s solicitor’s name and
address, the purchase price and the date,
(b) insert in or
delete from a contract for the sale of residential
property any description of any furnishings or chattels to be
included in the sale of the property,
(c) participate in
the exchange or making of contracts for the sale of
residential property.
(2) If a prospective
party to a proposed contract for the sale of
residential property for whom a real estate agent acts in relation to
the exchange or making of the contract notifies the real estate
agent, or it is apparent from the proposed contract, that a solicitor
is or will be acting for the party, the real estate agent may not
participate in the exchange or making of the contract unless
expressly authorised to do so by the party or the solicitor. A
contract is not invalid merely because of the failure of a real
estate agent to comply with this subsection.
(3) A real estate
agent who exercises any function pursuant to this
section on behalf of any person who is a party or a prospective party
to any contract or proposed contract is liable to compensate that
person for any loss, damage or expense suffered or incurred by that
person as a result of any negligent act or omission, or any
unauthorised action, of the real estate agent in the exercise of that
function.
(4) A real estate
agent may not charge a fee for anything authorised to
be done under this section.
(5) This section does
not affect the existence or nature of any other
functions or responsibilities of licensees that exist or may exist
apart from this section.
(6) In this section:
solicitor
includes a licensee under the Conveyancers Licensing Act 1995.
65
Procedure following rescission
(1) If a contract for
the sale of residential property or an option for
the purchase of residential property is rescinded under Division 8 or
9 of Part 4 of the Conveyancing Act 1919, a real estate agent who
holds money paid by the purchaser by way of deposit under or in
relation to the contract or the proposed contract attached to the
option is authorised to deal with that money as provided by this
section.
(2) The real estate
agent is authorised to pay to the vendor so much of
the money as does not exceed the amount (if any) forfeited under
section 66V or 66ZE of that Act, and receipt by the real estate agent
of the original or a copy of an effective notice of rescission served
by the purchaser under section 66U or 66ZD of that Act is sufficient
authority for the real estate agent to make the payment to the
vendor.
(3) The regulations
may make provision for or with respect to
authorising the real estate agent to pay to the purchaser the balance
of the money.
(4) In this section:
deposit
includes any amount paid by the purchaser in relation to the contract
or the proposed contract attached to the option or on account of the
purchase price of residential property.
purchaser
includes a prospective purchaser and a grantee or prospective
grantee of an option.
Division
2 Bidding at auction of residential property or rural land
66
Restrictions on bidding by or on behalf of seller or auctioneer
(1) A sale by auction
of residential property or rural land must be
notified in the conditions of sale to be subject to the right by the
seller or by any person on behalf of the seller or auctioneer to make
1 bid (and only 1 bid).
(2) At a sale by
auction of residential property or rural land:
(a) the seller or any
person on behalf of the seller or auctioneer must
not bid unless the right to bid has been notified in the conditions
of sale, and
(b) the seller or any
person on behalf of the seller or auctioneer must
not make more than one bid and must not make any bid if one of them
has already bid, and
(c) the auctioneer
must not take from the seller or any person on behalf
of the seller or auctioneer any bid knowing that the bid is in
contravention of this section, and
(d) when the
auctioneer takes a bid from the seller or any person on
behalf of the seller or auctioneer the auctioneer must, as soon as
the bid is taken, clearly state that the bid is a bid by the seller
or a person on behalf of the seller or auctioneer.
Maximum
penalty: 200 penalty units.
67
Bids may only be taken from registered bidders
(1) The auctioneer at
a sale by auction of residential property or rural
land must not take a bid from a person unless:
(a) the relevant
details of the person have been entered before the bid
is taken in a Bidders Record made in respect of the auction in
accordance with section 68, and the auctioneer is in possession of
that record when the bid is taken, and
(b) the person is
identified at the auction by the person displaying an
identifying number allocated to the person for the purposes of the
auction and recorded in the Bidders Record as the identifying number
allocated to the person.
Maximum
penalty: 100 penalty units.
(2) An auctioneer who
refuses to take a bid from a person because of
this section does not incur a liability to any person as a result of
that refusal.
(3) The taking of a
bid in contravention of this section does not affect
the validity of the bid (or its taking or acceptance) and the bid
(and its taking or acceptance) are as valid for all purposes as if
this section had not been enacted.
68
Bidders Record
(1) Before
residential property or rural land is offered for sale by
auction, a record (the Bidders Record) must be made of the persons
who will be entitled to bid at the auction and there must be entered
in the Bidders Record in respect of each of those persons:
(a) the relevant
details of the person, and
(b) the identifying
number allocated to the person for the purposes of
identifying the person at the auction, and
(c) such other
information as the regulations may require.
(2) The relevant
details of a person are:
(a) the person’s name
and address and the number or other
identifier of proof of identity for that person, and
(b) in addition, in
the case of a person bidding on behalf of another
person, the name and address of that other person and the number or
other identifier of proof of identity for that other person.
(3) A real estate
agent or stock and station agent engaged to act in
respect of the sale of residential property or rural land by auction
must make the Bidders Record required by this section for the auction
unless some other agent engaged to act in respect of the sale or
acting for or on behalf of the auctioneer has made the Bidders Record
for the auction.
(4) An agent is to
keep a Bidders Record made by the agent for at least
3 years and is to keep all the Bidders Records made by the agent
together, in the form of a Register of Bidders Records.
(5) The regulations
may make provision for or with respect to:
(a) conferring an
entitlement on a seller of residential property to
inspect the Bidders Record for the sale of the property, and
(b) the manner and
form in which a Bidders Record is to be made and
kept.
Maximum
penalty: 100 penalty units.
69
Details to be established by proof of identity
(1) An agent must not
enter a person’s name and address in a
Bidders Record unless those details are established by the production
to the agent of:
(a) proof of identity
for the person, and
(b) in the case of
the details of a person on whose behalf another
person is to bid, a letter of authority to bid on the person’s
behalf specifying the person’s name and address and the number
or other identifier of proof of identity for that person.
Maximum
penalty: 100 penalty units.
(2) The only proof of
identity that may be used for a person for the
purposes of an entry in a Bidders Record is:
(a) a motor vehicle
driver’s licence issued in Australia that
displays a photograph of the person, or
(b) an Australian
passport, or
(c) such other proof
of identity as may be prescribed by the
regulations.
(3) An agent must not
enter the relevant details of a person in a
Bidders Record if the agent knows or has reasonable cause to suspect
that the details are false in a material particular.
Maximum
penalty: 100 penalty units.
70
Confidentiality of Bidders Record
(1) An agent who
makes a Bidders Record, and any auctioneer to whom the
contents of a Bidders Record are disclosed under this Division, must
not:
(a) divulge any
information that the Bidders Record contains except as
authorised or required by this Division, and
(b) must not use the
Bidders Record or the information that it contains
for any purpose not authorised by this Division.
Maximum
penalty: 100 penalty units.
- This section
does not prevent the divulging of information to an authorised officer
in accordance with a requirement imposed by or under this Act.
Division
3 Representations as to selling price of residential property
72
False representation to seller or prospective seller
A
real estate agent or employee of a real estate agent must not make a
false representation to a seller or prospective seller of residential
property as to the agent’s or employee’s true estimate of
the selling price of the property.
Maximum
penalty: 200 penalty units.
73
False representation to prospective buyer
(1) A real estate
agent acting pursuant to an agency agreement for the
sale of residential property or the employee of such an agent must
not, by a statement made in the course of marketing the property,
falsely understate the estimated selling price of the property.
Maximum
penalty: 200 penalty units.
(2) An agent or
employee is considered to falsely understate the
estimated selling price of residential property if the agent or
employee states as his or her estimate of that selling price a price
that is less than his or her true estimate of that selling price.
(3) A statement is
considered to be made in the course of marketing
residential property if the statement is made:
(a) in an
advertisement in respect of the property that is published or
caused to be published by the agent, or
(b) to a person
(orally or in writing) as a prospective purchaser of the
property.
- A statement in
the agency agreement of the agent’s estimate of the selling price of
residential property is evidence for the purposes of this section of
the agent’s true estimate of that selling price.
74
Requirement to substantiate selling price estimates—residential
property
(1) The
Director-General may by notice in writing to a real estate agent
require the agent to provide evidence of the reasonableness of any
estimate of the selling price of residential property made by the
agent in a statement:
(a) orally or in
writing to a seller or prospective seller of the
property, or
(b) in an
advertisement in respect of the property that is published or
caused to be published by the agent, or
(c) orally or in
writing to a person as a prospective purchaser of the
property.
(2) A real estate
agent who fails to comply with a notice under this
section within the period for compliance specified in the notice is
guilty of an offence.
Maximum
penalty: 200 penalty units.
75
Division extends to estimates of price range
This
Division extends to estimated price range in the same way as it
applies to estimated price and for that purpose a reference in this
Division to price is taken to include a reference to price range.
76
Extended meaning of “estimate”
In
this Division, estimate includes opinion and belief.
Part
6 Auctions—general
77
Prescribed auction conditions
(1) The regulations
may prescribe conditions that are to be applicable
to or in respect of the sale by auction of land or livestock.
(2) The regulations
may make provision for or with respect to requiring
the notification at a sale by auction of land or livestock of any
conditions that are applicable to the sale.
78
Collusive practices at auction sales
(1) A person must
not, in relation to the sale by auction of any land or
livestock, by a collusive practice induce or attempt to induce any
other person:
(a) to abstain from
bidding generally, or
(b) to abstain from
bidding for any particular lot, or
(c) to bid to a
limited extent only, or
(d) to do any other
act or thing that might in any way prevent or tend
to prevent free and open competition.
Maximum
penalty:
(a) 200 penalty units
in the case of a corporation, or
(b) 100 penalty units
in any other case.
(2) A person must not
as a result of a collusive practice, at a sale by
auction of any land or livestock:
(a) abstain or agree
to abstain from bidding generally, or
(b) abstain or agree
to abstain from bidding for any particular lot, or
(c) bid or agree to
bid to a limited extent only, or
(d) do or agree to do
any other act or thing that might in any way
prevent or tend to prevent free and open competition.
Maximum
penalty:
(a) 200 penalty units
in the case of a corporation, or
(b) 100 penalty units
in any other case.
(3) An auctioneer
must not sell by auction any land or livestock unless
notice is given prior to the auction, in such manner and in such
terms as may be prescribed by the regulations, of the material parts
of this section.
Maximum
penalty: 20 penalty units.
(4) In this section:
collusive
practice means a promise, express or implied, made by a person
that if the person is the successful bidder at auction for land or
livestock:
(a) the person will
give the person to whom the promise is made the
right to elect to take over as purchaser through the auctioneer all
or any of the land or livestock at the auction price, or
(b) the ownership of
all or any of the land or livestock will be
determined by tossing or the drawing of lots or any other method.
79
False entry in auction record
(1) An auctioneer and
an employee of an auctioneer must not knowingly
enter in any record kept or required to be kept by the auctioneer as
the purchaser of any land or livestock sold by auction any name other
than the name of the actual successful bidder for the land or
livestock.
Maximum
penalty for a first offence: In the case of a corporation, 50 penalty
units or, in the case of an individual, 20 penalty units.
Maximum
penalty for a second or subsequent offence: In the case of a
corporation, 100 penalty units or, in the case of an individual, 50
penalty units.
(2) Any auctioneer
who employs any person, being a person who enters, in
any record required to be kept by the auctioneer, as the purchaser of
any land or livestock sold by auction any name other than the name of
the actual successful bidder for the land or livestock, is guilty of
an offence unless the auctioneer establishes that the auctioneer did
not know that a name other than the name of the actual successful
bidder was entered.
Maximum
penalty for a first offence: In the case of a corporation, 50 penalty
units or, in the case of an individual, 20 penalty units.
Maximum
penalty for a second or subsequent offence: In the case of a
corporation, 100 penalty units or, in the case of an individual, 50
penalty units.
(3) If the actual
successful bidder at a sale by auction of any land or
livestock, as soon as practicable after the auctioneer conducting the
sale has indicated the actual successful bidder but not in any case
later than the day of the sale, informs the auctioneer that the
bidder bid on behalf of another person and informs the auctioneer of
the name of that person, the auctioneer or employee is not guilty of
an offence under this section by reason of the name of that other
person being entered in a record as purchaser of the land or
livestock.
80
Misrepresentation as to quality etc
An
auctioneer must not knowingly misrepresent, or cause or permit to be
misrepresented, the value, composition, structure, character or
quality, or the origin of manufacture, of any land or livestock put
up for sale at a sale by auction conducted by the auctioneer.
Maximum
penalty: 50 penalty units.
81
Restrictions on bidding by or on behalf of seller or auctioneer of
livestock
(1) A sale by auction
of livestock may be notified in the conditions of
sale to be subject to the right by the seller or by any person on
behalf of the seller or auctioneer to make 1 bid or such other number
of bids as may be prescribed by the regulations.
(2) At a sale by
auction of livestock:
(a) the seller or any
person on behalf of the seller or auctioneer must
not bid unless the right to bid has been notified in the conditions
of sale, and
(b) the seller or any
person on behalf of the seller or auctioneer must
not make more than the number of bids notified in the conditions of
sale, and
(c) the auctioneer
must not take from the seller or any person on behalf
of the seller or auctioneer any bid knowing that the bid is in
contravention of this section.
Maximum
penalty: 50 penalty units.
82
Contracting out of prescribed terms and conditions of auction sales
(1) Any provision in,
or applying to, an agreement for the sale of
property by auction and purporting to exclude, modify or restrict
(otherwise than in accordance with this or any other Act) the
operation of any conditions prescribed as being applicable to or in
respect of the sale by auction of that property or property of that
class or description is void.
(2) A person must not
notify or cause to be notified in the conditions
of sale by auction of any property any provision purporting to
exclude, modify or restrict any conditions prescribed as applicable
to or in respect of the sale by auction of that property or property
of that class or description.
Maximum
penalty: 50 penalty units.
(3) In this section:
property
means land or livestock.
83
Successful bidder at auction to supply information
(1) The actual
successful bidder at a sale by auction of any land or
livestock must, as soon as practicable after the auctioneer
conducting the sale has indicated the actual successful bidder but
not in any case later than the day of the sale, supply to the
auctioneer or an employee of the auctioneer:
(a) the bidder’s name
if the bidder bid on his or her own behalf,
or
(b) the name of the
person on whose behalf the bidder bid if the bidder
bid on behalf of another person.
Maximum
penalty: 20 penalty units.
(2) An auctioneer
must not sell by auction any land or livestock unless
notice is given, in such manner and in such terms as may be
prescribed by the regulations, of the material parts of this section.
Maximum
penalty: 20 penalty units.
84
Livestock auctions—“comeback” prohibited
(1) An auctioneer
must not, at an auction for the sale of livestock,
sell by auction any lot for a price lower than any price bid in
relation to the sale of that lot.
(2) For the purposes
of this section, a price is bid if it is called by
a prospective purchaser or is attributed to a prospective purchaser
by the auctioneer as being the amount of a bid, and is not withdrawn
by the prospective purchaser prior to the sale of that lot.
Part
7 Trust accounts
Division
1 Preliminary
85
Interpretation
(1) In this Part:
trust
money means money received for or on behalf of any person by a
licensee in connection with the licensee’s business as a
licensee.
(2) A reference in
this Part to a licensee includes a reference to a
person who has ceased to be a licensee and to the personal
representative of a licensee who has died, and in the application of
this Part to:
(a) a person who has
ceased to be a licensee, a reference to moneys
received for or on behalf of a person by a licensee is to be read as
a reference to moneys received by that person for or on behalf of any
other person in connection with his or her business as a licensee,
and
(b) the personal
representative of a licensee who has died, a reference
to moneys received for or on behalf of a person by a licensee is to
be read as a reference to moneys received by that licensee or
personal representative for or on behalf of a person in connection
with the business carried on by that licensee.
Division
2 Payment of trust money into trust account
86
Trust money to be paid into trust account
(1) Money received
for or on behalf of any person by a licensee in
connection with the licensee’s business as a licensee:
(a) is to be held by
the licensee or (if the licensee is employed by a
corporation) by the corporation, exclusively for that person, and
(b) is to be paid to
the person or disbursed as the person directs, and
(c) until so paid or
disbursed is to be paid into and retained in a
trust account (whether general or separate) at an authorised
deposit-taking institution in New South Wales and approved by the
Director-General for the purposes of this Part.
(2) If the licence is
held by a corporation, the trust account is to be
in the name of the corporation and in any other case is to be in the
name of the licensee or of the firm of licensees of which the
licensee is a member.
(3) The words “Trust
Account” are to appear in the name of
the trust account and in the description of the trust account in the
books and records of the licensee and also on all cheques drawn on
the trust account.
(4) When opening a
trust account at an authorised deposit-taking
institution for the purpose of complying with this section, the
licensee concerned must ensure that the authorised deposit-taking
institution is notified in writing that the account is a trust
account required by this Act.
(5) A licensee must,
within 14 days after closing a trust account,
notify the Director-General in writing of the closure.
Maximum
penalty: 100 penalty units.
87
Approval of authorised deposit-taking institutions
(1) The
Director-General may approve an authorised deposit-taking
institution for the purposes of this Part and may revoke any such
approval by notice in writing to the authorised deposit-taking
institution.
(2) The
Director-General is not to approve an authorised deposit-taking
institution for the purposes of this Part unless satisfied that the
institution is able to discharge the obligations of an authorised
deposit-taking institution under this Part.
88
Trust money not available to pay licensee’s debts
(1) Trust money is
not available for the payment of the debts of the
licensee to any other creditor of the licensee, or liable to be
attached or taken in execution under the order or process of any
court at the instance of any other creditor of the licensee.
(2) This section does
not take away or affect any just claim or lien
that any licensee may have against or upon trust money.
89
Licensee to notify trust account becoming overdrawn
A
licensee must, within 5 days after becoming aware that a trust
account of the licensee has become overdrawn, notify the
Director-General in writing of:
(a) the name and
number of the account, and
(b) the amount by
which the account is overdrawn, and
(c) the reason for
the account becoming overdrawn.
Maximum
penalty: 100 penalty units.
90
Interest earned on trust accounts to be paid to Statutory Interest
Account
(1) On the first
business day after the end of each named month, each
authorised deposit-taking institution must:
(a) calculate
interest on the daily balances of all money held during
the month in trust accounts kept with the authorised deposit-taking
institution (being trust accounts notified to the institution as
trust accounts required by this Act) by applying to those balances
the prescribed percentage of the trust account rate applicable to the
institution for the purposes of this section, and
(b) pay the amount of
that interest to the Director-General for
crediting to the Statutory Interest Account.
Maximum
penalty: 100 penalty units.
(2) The Minister is
required to determine from time to time for the
purposes of this section, after consultation with the Treasurer, a
trust account rate for each authorised deposit-taking institution.
The rate may be a fixed or variable rate and is to be determined by
reference to an interest rate that applies in the short term money
market. The same rate may be determined for some or all authorised
deposit-taking institutions.
(3) As soon as
practicable after determining a trust account rate for an
authorised deposit-taking institution, the Minister must inform the
authorised deposit-taking institution of the rate by notice in
writing and publish a notice of the rate in the Gazette.
(4) The prescribed
percentage for the purposes of this section is 60 per
cent or such other percentage as the Minister may, from time to time,
determine after consultation with the Treasurer and notify by order
published in the Gazette. Different prescribed percentages may be
determined in respect of different classes of trust account.
(5) An authorised
deposit-taking institution must not deduct transaction
or other charges, other than statutory charges (such as a tax), from
the balances referred to in subsection (1) or from an amount of
interest calculated under that subsection.
(6) The
Director-General may, by proceedings brought in a court of
competent jurisdiction, recover as a debt an amount due and payable
to the Director-General under this section.
(7) This section does
not apply to a trust account of a class of trust
accounts prescribed by the regulations as exempt from this section.
Division
3 Responsibilities of authorised deposit-taking financial
institutions
Division
4 Unclaimed trust money
96
Unclaimed trust money held by licensee
(1) A licensee who in
the month of January in a year holds in a trust
account kept by the licensee money that was received by the licensee
more than 2 years before that month must furnish to the
Director-General in that month a statement (an unclaimed money
statement) showing particulars of:
(a) the money so
held, and
(b) each person for
whom or on whose behalf the money is held, and
(c) the address last
known to the licensee of each of those persons.
(2) A statement under
this section is to be in the form approved by the
Director-General.
97
Unclaimed trust money held by former licensee or personal
representative
(1) A former
licensee, or the personal representative of a deceased
licensee, who holds money in a trust account kept under this Act must
furnish to the Director-General a statement giving particulars of:
(a) the money held in
the trust account as at the date on which the
statement is furnished, and
(b) the names of the
persons for whom or on whose behalf the money is
held, and
(c) the address of
each of those persons last known to the person
furnishing the statement.
(2) This statement is
the first statement that the former licensee or
personal representative is required to furnish and it is to be
furnished within 3 months after the date on which the person ceased
to be a licensee or became the personal representative of the
deceased licensee.
(3) The former
licensee or personal representative must furnish a
further statement (an unclaimed money statement) within 14 days after
the period of 12 months has elapsed since the first statement was
furnished.
(4) The further
statement is to give particulars of the same matters as
the first statement and also include particulars of any payments made
from the trust account since the date of the first statement.
(5) A statement under
this section is to be in the form approved by the
Director-General.
(6) The regulations
may exempt money or a class of money from the
operation of this section.
98
Disposal of unclaimed money in trust accounts
(1) When the
Director-General receives an unclaimed money statement
under this Division, the Director-General is to:
(a) send by post to
each person for whom or on whose behalf any money
referred to in the statement is held a notice (an individual notice)
in writing addressed to the person at the person’s address
shown in the statement stating the particulars of the moneys held for
or on behalf of that person, and
(b) cause
notification to be published in the Gazette (a Gazette
notification) stating the particulars of the money held for or on
behalf of each of those persons.
(2) Each individual
notice and the Gazette notification is to state
that, if the money is not paid out of the trust account in which it
is held within 3 months after the date of publication of the Gazette
notice, the person holding the money will be required to pay it to
the Director-General.
(3) At any time after
the expiration of that 3 months the
Director-General may, by a notice in writing served personally or by
post on the person by whom the money is held, require that person:
(a) to pay to the
Director-General any moneys referred to in the Gazette
notification that have not been previously paid by that person out of
the trust account in which they are held, and
(b) to furnish to the
Director-General, within such period as may be
specified in the notice to the person, a statement showing
particulars of any payments made out of the money referred to in the
Gazette notification since the unclaimed money statement was made.
(4) The
Director-General must pay any money received by the
Director-General under this section into the Compensation Fund.
(5) Within 2 months
after 31 December in each year, the Director-General
must pay into the Consolidated Fund all money received by the
Director-General and paid into the Compensation Fund under this
section during the period of 12 months ending on that 31 December.
(6) When the
Director-General makes a payment into the Consolidated
Fund, the Director-General is to give the Treasurer a statement
containing the following particulars:
(a) the name and last
known address of each person for whom or on whose
behalf the money received by the Director-General was held,
(b) the amount held
in respect of each of those persons,
(c) the date of
gazettal of the Gazette notification in respect of that
money,
(d) the name and
address of each licensee who furnished an unclaimed
money statement to the Director-General in respect of that money.
(7) A person who
fails to comply with the requirements of any notice
served on the person under this section is guilty of an offence.
Maximum
penalty: 50 penalty units.
99
Repayment of unclaimed trust money
(1) The Treasurer
must, on application made to the Treasurer by a person
entitled to money paid into the Consolidated Fund under this
Division, pay the money to the person.
(2) If an application
for the payment of money to which a person is
entitled is made while the money is held in the Compensation Fund,
the Director-General must pay the money to the person from the
Compensation Fund.
Division
5 Information about trust accounts or transactions
100
Director-General may require information
(1) The
Director-General may by notice in writing served on a licensee
require the licensee to furnish to the Director-General in the manner
required by the notice a statement in writing setting out full
particulars as to any of the following:
(a) the name of the
trust account on which the licensee operates in
accordance with this Act, the name of the authorised deposit-taking
institution at which the account is current, the balance of the money
standing to the credit of the account as at a date specified in the
notice, and particulars of all cheques drawn on the account as at
such date and not presented and duly paid,
(b) any money paid by
any person to the licensee or received by the
licensee for or on behalf of any person in connection with the
licensee’s business as a licensee and, if not still held by the
licensee, the manner and time of its disbursement,
(c) any transaction
by or with the licensee as a licensee.
(2) The licensee must
comply with a notice under this section within 7
days after it is served on the licensee.
(3) A notice under
this section cannot relate to any transaction by or
with the licensee more than 3 years before the notice is served on
the licensee.
101
Person concerned in transaction may request itemised account
(1) A person directly
concerned in any transaction by or with a licensee
in connection with the licensee’s business as a licensee may
request the licensee in writing to render to the person in the manner
prescribed by the regulations an itemised account of the transaction.
(2) The licensee must
comply with the request within 14 days after the
request is served on the licensee.
(3) A person may not
request an itemised account of a transaction that
took place more than 6 months before the making of the request.
102
Offence
(1) A licensee must
not fail without reasonable excuse (proof of which
lies on the licensee) to comply with a requirement under this
Division.
(2) A licensee must
not, in purported compliance with a requirement
under this Division, furnish information that the licensee knows is
false or misleading in a material particular.
Maximum
penalty: 100 penalty units.
Part
8 Records
Division
1 Keeping and inspection of records
103
Licensee’s records
(1) In this Act:
licensee’s
records means:
(a) records required
to be kept by a licensee by or under this Act that
are in the possession, custody or control of the licensee, and
(b) records and
documents in the possession, custody or control of a
licensee that relate to any account (whether or not a trust account)
kept by the licensee in connection with the licensee’s business
as a licensee or to any transaction by or with the licensee in
connection with the licensee’s business as a licensee.
(2) If records or
documents that were licensee’s records are in
the possession, custody or control of a person as a former licensee,
as the personal representative of a deceased licensee, or as a result
of the transfer of the business of the licensee or otherwise, those
records or documents are still licensee’s records for the
purposes of this Division.
(3) An account on
which a strata managing agent operates for or on
behalf of an owners corporation, or on which a community managing
agent operates on behalf of an association constituted under the
Community Land Development Act 1989 is taken to be an account kept by
the agent in connection with his or her business as a licensee.
(4) This Part extends
to records in the possession, custody or control
of a person even when the records are located outside the State.
104
Licensee to make and keep certain records
(1) A licensee must
make the following records:
(a) a record
containing full particulars of all transactions by or with
the licensee in connection with his or her business as a licensee,
(b) such other
records relating to the licensee’s business as a
licensee as may be required by the regulations.
(2) A record required
by this section must be kept for at least 3 years
after it is made.
(3) The record must
be kept:
(a) by the licensee
at the licensee’s registered office (while the
licensee remains a licensee), or
(b) if the licensee
ceases to be a licensee, by the former licensee in
his or her possession, custody or control unless the former licensee
authorises some other person to have possession, custody or control
of the record, or
(c) by any other
person who obtains possession, custody or control of
the record whether as a result of being the personal representative
of a deceased licensee or by transfer of the business of the licensee
or otherwise.
(4) The regulations
may make provision for the manner and form in which
a record required by this section is to be kept.
(5) An entry in a
record made under this section and kept at the
registered office of a licensee is presumed, unless the contrary is
proved, to have been made by or with the authority of the licensee.
(6) A person who
contravenes a provision of this section is guilty of an
offence.
Maximum
penalty: 50 penalty units.
105
Inspection of licensee’s records
(1) A licensee’s
records are at all reasonable times open to
inspection by an authorised officer.
(2) An authorised
officer may require a person who has possession,
custody or control of a licensee’s records:
(a) to produce the
licensee’s records for inspection,
(b) to furnish all
authorities and orders to financial institutions as
may be reasonably required of the person.
(3) If a licensee is
absent from an office or place of business of the
licensee, any employee or agent of the licensee for the time being
having the apparent control or charge of the office or place of
business is taken to have possession, custody or control of the
licensee’s records at that office or place of business.
(4) An authorised
officer may take copies of or extracts from, or make
notes from, any licensee’s records produced to the authorised
officer under this section and for that purpose may take temporary
possession of those records.
106
Inspection of records of financial institutions
(1) An authorised
officer may serve on an authorised deposit-taking
institution with which a licensee has deposited any money in any
account (whether the licensee’s own account or a general or
separate trust account) a notice, in a form approved by the
Director-General and signed by the authorised officer:
(a) certifying as to
the reason for serving the notice, as provided by
this section, and
(b) requiring the
authorised deposit-taking institution to produce to
the authorised officer for inspection the records of the institution
relating to the account.
(2) Each of the
following is a reason for serving a notice under this
section:
(a) the licensee
cannot be located,
(b) the licensee has
left the State,
(c) the licensee or
any other person required to do so has failed to
furnish any authority or order on the institution in accordance with
a requirement under this Division,
(d) the licensee has
ceased to be a licensee,
(e) the licensee has
contravened a provision of Part 7 (Trust accounts).
(3) An authorised
officer may take copies of or extracts from, or make
notes from, any records produced to the authorised officer under this
section and for that purpose may take temporary possession of those
records.
107
Power to require production of licensee’s records
(1) An authorised
officer may give a written notice to a licensee or to
another person that the officer reasonably believes has possession,
custody or control of the licensee’s records requiring the
licensee or person to produce the licensee’s records specified
in the notice at the time and place specified in the notice.
(2) An authorised
officer may inspect any record produced in response to
a notice under this section and may take copies of or extracts from,
or make notes from, any such record.
(3) A licensee does
not contravene a provision of this Act if the
licensee was unable to comply with the provision because an
authorised officer retained possession of a record or document under
this section.
108
Power to take possession of records to be used as evidence
(1) An authorised
officer to whom any record is produced under this Part
may take possession of the record if the authorised officer considers
it necessary to do so for the purpose of obtaining evidence or
protecting evidence from destruction.
(2) If an authorised
officer takes possession of any record under this
section, the record may be retained by the officer until the
completion of any proceedings (including proceedings on appeal) in
which the record may be evidence.
(3) The person from
whom the record was taken must be provided, within a
reasonable time after the record is taken, with a copy of the record
certified by an authorised officer as a true copy.
(4) A copy of a
record provided under this section is, as evidence, of
equal validity to the record of which it is certified to be a copy.
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Additional requirements for managing agents
(1) A strata managing
agent or community managing agent must keep a copy
of the following instruments:
(a) an instrument of
appointment appointing the agent as strata managing
agent or community managing agent, and
(b) an instrument of
delegation delegating to the agent any powers,
authorities, duties or functions of an owners corporation or an
association.
(2) A copy of an
instrument of appointment or delegation kept under this
section is a licensee’s record for the purposes of this Part.
(3) In this section:
association
means a community association, precinct association or
neighbourhood association constituted
under section 25 of the Community Land Development Act 1989.
owners
corporation means an owners corporation constituted under the
Strata Schemes Management Act 1996.
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Offence
(1) A person must not:
(a) wilfully delay or
obstruct an authorised officer in the exercise of
the authorised officer’s functions under this Division, or
(b) fail to comply
with a requirement under this Division to produce a
record or document in the person’s possession, custody, or
control, or
(c) fail to comply
with a requirement under this Division to furnish any
authority or order reasonably required of the person under this
Division, or
(d) in purported
compliance with a requirement under this Division
produce a document or record knowing it to be false or misleading in
a material particular.
Maximum
penalty: 100 penalty units.
(2) A court that
convicts a person of an offence under this section may,
in addition to any penalty imposed, order the person to produce the
records in respect of which the offence occurred to the
Director-General or an authorised officer within such time as the
court specifies in the order.
(3) A person who
fails to produce a record in accordance with an order
of a court made under this section is guilty of an offence punishable
by a penalty not exceeding 10 penalty units in respect of each day
that the failure continues.
Division
2 Audit of licensee’s records
111
Requirement for audit
(1) A person who is a
licensee, a former licensee or the personal
representative of a licensee must, within 3 months after the end of
the audit period applicable to the person:
(a) cause the records
and documents relating to any money held during
that period in a trust account kept by the person in accordance with
this Act to be audited by a person qualified to act as an auditor for
the purposes of this Division, and
(b) lodge the
auditor’s report on the audit with the
Director-General.
(2) The
Director-General may in a particular case or class of cases by
order in writing extend the period of 3 months under subsection (1).
(3) The person must
retain a copy of the auditor’s report on the
audit for a period of three years after the date on which the report
was made.
(4) The auditor’s
report is to be in a form approved by the
Director-General and is to be signed by the auditor.
Maximum
penalty:
(a) 100 penalty units
in the case of a corporation, or
(b) 50 penalty units
in any other case.
112
Audit period
(1) The audit period
applicable to a person is the year ending on 30
June or such other period as the Director-General may fix in respect
of the person under this section.
(2) The
Director-General may by order in writing served on a person fix
some other period as the audit period applicable to the person.
(3) Such an order may
be made on the application of the person or on the
Director-General’s own initiative.
(4) Such an order may
be made with such limitations as to time or
circumstances, and subject to such conditions, as the
Director-General considers appropriate.
113
Statutory declaration required when no trust money held or received
A
licensee who in the course of the audit period applicable to the
licensee neither received nor held any money for or on behalf of any
other person must, within the period of three months after that day,
make and lodge with the Director-General a statutory declaration to
that effect.
Maximum
penalty: 100 penalty units.
114
Audit obligations of partners
If
the provisions of this Division are complied with by any one of the
licensees in a partnership of licensees in relation to the audit of
the records and documents of the partnership, each of those partners
is taken to have complied with those provisions.
115
Qualifications of auditors
(1) A person is
qualified to act as an auditor for the purposes of this
Division if the person:
(a) is a registered
company auditor within the meaning of the
Corporations Act, or
(b) is a person who
has been nominated by the person whose records and
documents are to be audited and who has been approved by the
Director-General by order in writing.
(2) Such a person is
not qualified to act as an auditor for the purposes
of this Division if the person:
(a) is or has at any
time within 2 years before the last day of the
period in respect of which the audit is to be made, been an employee
or partner of the person whose records or documents are to be
audited, or
(b) is a licensee, or
a shareholder in a corporation that is a licensee
and that has not more than twenty shareholders.
116
Duties of auditors
(1) If an auditor in
the course of making an audit for the purposes of
this Division discovers that any breach of this Act or the
regulations has been committed, that there is any discrepancy
relating to the trust account to which the audit relates or that the
records or documents concerned are not kept in such a manner as to
enable them to be properly audited, the auditor must:
(a) fully set out the
facts so discovered by the auditor in the report
made by the auditor for the purposes of the audit, and
(b) forward a copy of
the report to the Director-General.
(2) An auditor, or an
assistant of an auditor, appointed to make an
audit for the purposes of this Division must not communicate any
matter which may come to the auditor’s knowledge in the course
of the audit to any person except:
(a) in the course of
the auditor’s duties as an auditor or
assistant of an auditor, or
(b) in accordance
with this section, or
(c) in the like
circumstances and to the like extent as an officer of
the Department is permitted under this Act to publish that
information.
(3) An auditor’s
report under this Division (including under this section) relating to
documents or records of any person, and any statutory declaration
lodged with the Director-General under this Division, are available in
the hands of the Director-General for inspection by an auditor
appointed to carry out for the purposes of this Division any subsequent
audit of the records or documents of that person.
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