Property, Stock and Business Agents Amendment Act 2013 No 3

An Act to amend the Property, Stock and Business Agents Act 2002 to make further provision with respect to agency agreements, trust accounts, unclaimed trust money and stock auctions; and for other purposes.

1 Name of Act

This Act is the Property, Stock and Business Agents Amendment Act 2013.

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66

[1] Section 11 Registered salespersons and managers required to be employed and supervised by licensee

Omit section 11 (3) and (4). Insert instead:

  

(3)  The holder of a certificate of registration must not act as an auctioneer, except as permitted by subsection (4).

(4)  The holder of a certificate of registration as a stock and station salesperson may auction livestock if the holder conducts the auction:

(a)  as an employee of the holder of a stock and station agent’s licence, and

(b)  under the immediate and direct supervision of the holder of a licence that allows the licensee to auction livestock (whether or not that licensee is the licensee in charge of the place of business at which the employee is employed or is the employer of the employee).

[2] Section 16 Disqualified persons

Omit “or has failed to lodge a statutory declaration as required by section 113,” from section 16 (1) (o).

[3] Section 55 No entitlement to commission or expenses without agency agreement

Insert at the end of section 55 (1):

  

Note—

Section 55A allows a court or tribunal to order that commission and expenses are recoverable in certain circumstances despite subsection (1).

[4] Section 55 (4) and (5)

Omit the subsections.

[5] Section 55A

Insert after section 55:

  

55A Relief from disentitlement to commission and expenses

(1)  A court or tribunal before which relevant proceedings are taken may order that commission or expenses are wholly or partly recoverable by a licensee who would otherwise not be entitled to the commission or expenses (under section 55) because of:

(a)  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, or

(b)  a failure of the relevant agency agreement to comply with the requirements of the regulations.

(2)  A court or tribunal is not to make such an order in circumstances of a failure to serve a copy of the agency agreement within the required time unless satisfied that:

(a)  the failure 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.

(3)  A court or tribunal is not to make such an order in circumstances of a failure of the agency agreement to comply with the requirements of the regulations unless satisfied that:

(a)  the failure is a minor failure, and

(b)  no loss has been suffered as a result of the failure by the person for whom or on whose behalf the services concerned were performed, and

(c)  failure to make the order would be unjust.

(4)  Proceedings are relevant proceedings if they are proceedings taken by a licensee for the recovery of commission or expenses from a person or proceedings on a consumer claim relating to commission or expenses (as referred to in section 36) in relation to which a licensee is a respondent.

[6] Section 86 Trust money to be paid into trust account

Insert at the end of section 86 (4):

  

The notification must be in a form approved by the Director-General and the licensee must serve a copy of the notification on the Director-General within 14 days after the trust account is opened.

[7] Section 86 (5)

Insert at the end of the subsection:

  

The notification must be in a form approved by the Director-General.

[8] Section 86 (6)

Insert after section 86 (5) (before the penalty):

  

(6)  Subsections (4) and (5) do not apply in respect of:

(a)  a separate trust account kept on the instructions of a client of a licensee or firm of licensees for the exclusive benefit of the client, or

(b)  a separate trust account opened by a licensee for the exclusive benefit of both the vendor and the purchaser of land.

[9] Part 7, Division 4 Unclaimed trust money

Omit the Division.

[10] Section 111 Requirement for audit

Omit section 111 (1) (b). Insert instead:

  

(b)  if the auditor’s report on the audit is a qualified report, lodge the report with the Director-General.

[11] Section 111 (1A)

Insert after section 111 (1):

  

(1A)  An auditor’s report is a qualified report if it sets out any discovery by the auditor 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.

[12] Section 111 (3)

Omit the subsection. Insert instead:

  

(3)  An auditor’s report under this section must be kept for at least 3 years:

(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 report, or

(c)  by any other person who obtains possession, custody or control of the report whether as a result of being the personal representative of a licensee or by transfer of the business of the licensee or otherwise.

[13] Section 112A

Insert after section 112:

  

112A Random audits

(1)  The Director-General may at any time appoint a person qualified to act as an auditor for the purposes of this Division to audit the records and documents relating to any money held in a trust account kept by a licensee and provide a report on the audit to the Director-General.

(2)  On production by the person of his or her instrument of appointment as an auditor for the purposes of this section, the auditor may require the licensee (or, in the absence of the licensee, an associate of the licensee) to do any one or more of the following things:

(a)  produce to the auditor or any assistant of the auditor all records and documents relating to any money held in a trust account kept by the licensee and (in the case of records stored electronically) produce any such record in written form,

(b)  give the auditor or any assistant of the auditor all information relating to the records required to be produced under this section,

(c)  produce to the auditor or any assistant of the auditor all authorities and orders to financial institutions and other documents that may be reasonably required.

(3)  The licensee or associate is guilty of an offence if the licensee or associate, without reasonable excuse (proof of which lies on the licensee or associate):

(a)  refuses or fails to comply with a requirement under this section, or

(b)  otherwise hinders, obstructs or delays an auditor in the exercise or performance of the auditor’s functions under this section.

Maximum penalty: 50 penalty units.

(4)  In this section, associate of a licensee has the same meaning as in Division 3 of Part 10.

[14] Section 113 Statutory declaration required when no trust money held or received

Omit the section.

[15] Section 115 Qualifications of auditors

Insert after section 115 (1) (a):

  

(a1)  is an authorised audit company within the meaning of the Corporations Act, or

(a2)  is a member of a professional accounting body within the meaning of the Australian Securities and Investments Commission Act 2001 of the Commonwealth and holds a Public Practice Certificate or Certificate of Public Practice issued by the body, or

[16] Section 116 Duties of auditors

Omit section 116 (1) (b). Insert instead:

  

(b)  forward a copy of the report to the Director-General within 14 days after providing the report to the licensee.

[17] Section 116 (1)

Insert at the end of the subsection:

  

Maximum penalty: 50 penalty units.

[18] Section 184 Powers of accounts examiner

Omit “without lawful justification or excuse” from section 184 (2).

Insert instead “without reasonable excuse”.

[19] Schedule 1 Savings and transitional provisions

Insert at the end of clause 1 (1):

  

Property, Stock and Business Agents Amendment Act 2013

[20] Schedule 1

Insert at the end of the Schedule:

  

Part 4 Provisions consequent on enactment of Property, Stock and Business Agents Amendment Act 2013

24 Definition

In this Part:

2013 amending Act means the Property, Stock and Business Agents Amendment Act 2013.

25 Recovery of commission and expenses

The amendments made to section 55 by the 2013 amending Act, and section 55A as inserted by that Act, do not apply in respect of an agency agreement entered into before the commencement of section 55A.

26 Unclaimed money amendments

(1)  An amendment made by the 2013 amending Act to the Unclaimed Money Act 1995 extends to money held in a trust account immediately before the commencement of the amendment, subject to this clause.

(2)  Division 4 (Unclaimed trust money) of Part 7 of this Act continues to apply (despite its repeal) to and in respect of money held in a trust account by a person who became a former licensee, or the personal representative of a deceased licensee, before the repeal of that Division.

(3)  Section 9C (Trust money held by former licensee or personal representative) of the Unclaimed Money Act 1995 does not apply to or in respect of money held in a trust account by a person who became a former licensee, or the personal representative of a deceased licensee, before the commencement of that section.

(4)  Division 4 (Unclaimed trust money) of Part 7 of this Act continues to apply (despite its repeal) to and in respect of the following:

(a)  an unclaimed money statement under that Division furnished (or required to have been furnished) to the Director-General before the repeal of that Division,

(b)  any money referred to in (or required to be referred to in) any such unclaimed money statement,

(c)  any money received by the Director-General under that Division and paid under that Division into the Compensation Fund or the Consolidated Fund before or after the repeal of that Division.

(5)  Without limiting subclause (4), section 99 (Repayment of unclaimed trust money) of this Act continues to apply (despite its repeal) to money paid under Division 4 of Part 7 into the Compensation Fund or the Consolidated Fund before or after the repeal of that Division.

Schedule 2 Amendment of Unclaimed Money Act 1995 No 75

[1] Section 6A

Insert before section 7:

  

6A Part does not apply to unclaimed agent trust money

This Part does not apply to money that is unclaimed money under Part 2A (Trust money under Property, Stock and Business Agents Act 2002).

[2] Part 2A

Insert after Part 2:

  

Part 2A Trust money under Property, Stock and Business Agents Act 2002

9A Definitions

In this Part, licensee, former licensee and trust account have the same meanings as in the Property, Stock and Business Agents Act 2002.

9B Unclaimed trust money held by licensee

(1)  Money that has been held by a licensee for more than 2 years in a trust account kept by the licensee is unclaimed money for the purposes of this Act.

(2)  A licensee who has held money for more than 2 years in a trust account kept by the licensee must make reasonable efforts:

(a)  to identify and locate the owner of the money, and

(b)  to ensure that the money is paid to the owner of the money.

Maximum penalty: 50 penalty units.

Note—

Unclaimed money is required to be paid to the Chief Commissioner after 30 June in each year. See section 10.

9C Unclaimed trust money held by former licensee or personal representative

(1)  Money held in a trust account by a former licensee or the personal representative of a deceased licensee is unclaimed money for the purposes of this Act but section 10 does not apply to the money.

(2)  A former licensee, or the personal representative of a deceased licensee, who holds unclaimed money must within the required time for compliance with this section:

(a)  lodge with the Chief Commissioner a return relating to the unclaimed money in a form approved by the Chief Commissioner, and

(b)  pay the amount of the unclaimed money to the Chief Commissioner.

(3)  The required time for compliance with this section is 3 months after the date on which the person ceased to be a licensee or became the personal representative of the deceased licensee (or such longer period as the Chief Commissioner may in a particular case allow).

(4)  The Chief Commissioner is to pay money received under this section into the Consolidated Fund.

(5)  A former licensee, or the personal representative of a deceased licensee, who fails to comply with this section is guilty of an offence and is liable:

(a)  to a penalty not exceeding 50 penalty units, and

(b)  to a further penalty not exceeding 5 penalty units for each day after the period within which he or she was required to comply during which the failure continues.

9D Regulations

Money is not unclaimed money under this Part if:

(a)  the money is, or is of a class, prescribed by the regulations as exempt from the operation of this Part, or

(b)  the money is held by an enterprise that is, or is of a class, prescribed by the regulations as exempt from the operation of this Part.

[3] Section 28 General power to make assessment

Omit “section 10 (1) or 13B (1)” from section 28 (6).

Insert instead “section 9C, 10 or 13B”.

[4] Schedule 2 Savings, transitional and other provisions

Omit clause 1 (1). Insert instead:

  

(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act and any Act that amends this Act.