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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Conveyancers Licensing Amendment
Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Conveyancers Licensing Act 2003 No 3 2
4 Repeal of Act 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Conveyancers Licensing Amendment
Bill 2006
Act No , 2006
An Act to amend the Conveyancers Licensing Act 2003 to make further provision
with respect to the licensing and regulation of conveyancers; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Conveyancers Licensing Amendment Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Conveyancers Licensing Amendment Act 2006.
2 Commencement
This Act commences on the date of assent to this Act.
3 Amendment of Conveyancers Licensing Act 2003 No 3
The Conveyancers Licensing Act 2003 is amended as set out in
Schedule 1.
4 Repeal of Act
(1) This Act is repealed on the day following the day on which this Act
commences.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
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Conveyancers Licensing Amendment Bill 2006
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 6 Persons conducting conveyancing business required to be
licensed
Omit section 6 (2) (b). Insert instead:
(b) who is an incorporated legal practice or solicitor
corporation (if the conveyancing business is carried on on
its behalf by an Australian legal practitioner).
[2] Section 8 Eligibility for licence
Insert after section 8 (2) (c):
(c1) the corporation is not a disqualified person, and
[3] Section 9 Qualifications for licence
Omit "replacement" from section 9 (5). Insert instead "renewal".
[4] Section 10 Disqualified persons
Omit section 10 (1) (b)-(d).
[5] Section 10 (1) (g)
Omit the paragraph. Insert instead:
(g) is the holder of a licence, permit or other authority that is
suspended under legislation administered by the Minister
or is disqualified from holding a licence, permit or other
authority under legislation administered by the Minister,
or
[6] Section 10 (1) (h)
Omit "the holder of a licence, permit or other authority that is suspended under
the Fair Trading Act 1987".
Insert instead "a disqualified person".
[7] Section 10 (1) (n)
Omit "or controlled money".
[8] Section 10 (1) (p1)
Insert after section 10 (1) (p):
(p1) is an Australian legal practitioner, incorporated legal
practice or solicitor corporation, or
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Conveyancers Licensing Amendment Bill 2006
Schedule 1 Amendments
[9] Section 10 (1) (q1)
Insert after section 10 (1) (q):
(q1) is the holder of a licence or certificate of registration under
the Property, Stock and Business Agents Act 2002, or
[10] Section 10 (2)
Omit the subsection. Insert instead:
(2) A person is also a disqualified person for the purposes of this Act
(except for the purposes of section 29) if the person:
(a) is an undischarged bankrupt, or
(b) at any time in the last 3 years was an undischarged
bankrupt, applied to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounded with
his or her creditors or made an assignment of his or her
remuneration for their benefit, or
(c) is, or was at any time in the last 3 years, a director or person
concerned in the management of an
externally-administered body corporate (within the
meaning of the Corporations Act) except in a case of the
voluntary winding up of the body corporate, or
(d) is a person:
(i) who at any time in the last 3 years, was a director or
person concerned in the management of a body
corporate that, within 12 months of the person
ceasing to be such a director or person, became an
externally-administered body corporate (within the
meaning of the Corporations Act) except in the case
of a voluntary winding up of the body corporate, and
(ii) who failed (while a director or person concerned in
the management of that body corporate) to take all
reasonable steps to avoid the body corporate
becoming an externally-administered body
corporate.
[11] Section 10 (3A)-(3D)
Insert after section 10 (3):
(3A) The Director-General may, in any case that the Director-General
thinks it appropriate to do so, determine that a suspension or
disqualification from holding a licence, permit or other authority
under legislation administered by the Minister (as referred to in
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Conveyancers Licensing Amendment Bill 2006
Amendments Schedule 1
subsection (1) (g)) is to be ignored for the purposes of this
section.
(3B) The Director-General may exempt a person from the operation of
subsection (2) (a), (b) or (c) by:
(a) certifying, in the case of exemption from subsection (2)
(a), that the Director-General is satisfied that the person
took all reasonable steps to avoid the bankruptcy
concerned, or
(b) certifying, in the case of exemption from subsection (2)
(b), that the Director-General is satisfied that the person
took all reasonable steps to avoid the bankruptcy or other
financial difficulties concerned, or
(c) certifying, in the case of exemption from subsection (2)
(c), that the Director-General is satisfied that the person
took all reasonable steps (while a director or person
concerned in the management of the body corporate) to
avoid the body corporate becoming an
externally-administered body corporate.
(3C) Subsection (2) (d) does not operate to make a person a
disqualified person unless the Director-General has served a
notice on the person giving the person the opportunity to make
oral or written submissions to the Director-General within a
period (being not less than 14 days) specified in the notice with
respect to the grounds on which the person believes he or she took
all reasonable steps to avoid the body corporate becoming an
externally-administered body corporate and the Director-General
is satisfied that the person failed to take all such steps.
(3D) In determining for the purposes of subsection (3B) or (3C) what
reasonable steps could have been taken by a person to avoid a
particular outcome, the Director-General is to have regard to the
steps that could have been taken by the person from the time that
the financial difficulties that gave rise to the outcome first arose.
[12] Section 11 Application to licences of Licensing and Registration
(Uniform Procedures) Act 2002
Omit "section 21 (1), (4) and (7)" from section 11 (3) (f).
Insert instead "section 21 (1) and (4)".
[13] Section 17 Duration
Omit "suspended, cancelled or surrendered".
Insert instead "suspended or cancelled".
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Conveyancers Licensing Amendment Bill 2006
Schedule 1 Amendments
[14] Section 18 Surrender of licence
Omit the section.
[15] Section 27 Partnerships
Omit "Trust money and controlled money" from section 27 (5) (e).
Insert instead "Trust money".
[16] Section 35 Advertisement to include information about licensee
Insert "or cause to be published" after "publish".
[17] Part 5, heading
Omit "and controlled money".
[18] Part 5, Divisions 1 and 2
Omit the Divisions. Insert instead:
Division 1 Preliminary
52 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 conveyancing
business.
(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.
(3) In the application of this Part:
(a) to a person who has ceased to be a licensee, a reference to
money received for or on behalf of a person by a licensee
is to be read as a reference to money received by that
person for or on behalf of any other person in connection
with his or her business as a licensee, and
(b) to the personal representative of a licensee who has died, a
reference to money received for or on behalf of a person by
a licensee is to be read as a reference to money received by
that licensee or personal representative for or on behalf of
a person in connection with the business carried on by that
licensee.
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Conveyancers Licensing Amendment Bill 2006
Amendments Schedule 1
Division 2 Payment of trust money into trust account
53 Payment of trust money into trust account
(1) Money received for or on behalf of any person by a licensee in
connection with the licensee's conveyancing business:
(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) Subsection (1) does not prevent a licensee from:
(a) withdrawing or receiving, from trust money, money due to
the licensee for costs so long as the procedure prescribed
by the regulations is followed, and
(b) holding, or disposing of, a cheque or other negotiable
instrument payable to a third party if the licensee does so
on behalf of a client and in accordance with directions
given by the client, and
(c) exercising a general retaining lien for unpaid costs and
disbursements in respect of money in a trust account (other
than money received subject to an express direction by the
client with respect to the purposes for which the money is
to be applied).
(4) A lien referred to in subsection (3) (c):
(a) may not be exercised for an amount in excess of the sum
of the costs and disbursements unpaid, and
(b) may not be exercised unless:
(i) the licensee has disclosed to the client, in
accordance with Division 5 of Part 3, the basis of the
costs for the conveyancing work concerned, or
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Conveyancers Licensing Amendment Bill 2006
Schedule 1 Amendments
(ii) if such a disclosure is not required to be made (as
provided by sections 39 and 40 and any relevant
regulations)--the licensee has served a bill of costs
on the client.
(5) The name of a trust account and the description of the trust
account in the books and records of the licensee and also on all
cheques drawn on the trust account:
(a) must include the name of the licensee corporation, licensee
or firm of licensees in whose name the trust account is
kept, and
(b) must include the words "Trust Account", and
(c) may include, at the end of the account's name, a name or
other matter to identify the person on whose behalf money
in the account is held.
(6) 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.
(7) 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.
54 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.
(3) An authorised deposit-taking institution that is the subject of an
approval that is in force for the purposes of Part 7 of the Property,
Stock and Business Agents Act 2002 is taken to have been
approved by the Director-General for the purposes of this Part.
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Conveyancers Licensing Amendment Bill 2006
Amendments Schedule 1
55 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.
56 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.
57 Interest earned on trust accounts to be paid to Statutory Interest
Account
(1) Sections 90 and 91 of the Property, Stock and Business Agents
Act 2002 apply in respect of all money held in a general trust
account under this Division as if:
(a) the trust account were a trust account opened and kept
under section 86 of that Act, and
(b) the licensee who opened and keeps the trust account were
a licensee under that Act.
Note. Section 90 of the Property, Stock and Business Agents Act 2002
provides for interest earned on trust accounts to be paid to the Statutory
Interest Account. Section 91 requires authorised deposit-taking
institutions to notify the Director-General of certain matters with respect
to trust accounts kept with the institution, including the number of trust
accounts opened with the institution during a month and the names of
the licensees who opened the accounts.
(2) A licensee must, when opening a trust account at an authorised
deposit-taking institution under this Division, ensure that the
authorised deposit-taking institution is notified that the trust
account is, for the purposes of sections 90 and 91 of the Property,
Stock and Business Agents Act 2002, to be regarded as a trust
account required by that Act. Such a notification is, for the
purposes of those sections, to be regarded as a notification that
the trust account concerned is required by that Act.
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Conveyancers Licensing Amendment Bill 2006
Schedule 1 Amendments
[19] Part 5, Division 4
Omit the Division. Insert instead:
Division 4 Unclaimed trust money
62 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.
63 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.
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Conveyancers Licensing Amendment Bill 2006
Amendments Schedule 1
(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 or other place where money is held
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.
64 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 money 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 or other place in
which it is held within 3 months after the date of publication of
the Gazette notification, 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 money referred to in the
Gazette notification that has not been previously paid by
that person out of the trust account or other place in which
it is 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.
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Conveyancers Licensing Amendment Bill 2006
Schedule 1 Amendments
(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 (less any of that money that has been paid from
the Compensation Fund to the person entitled to the money).
(6) 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.
65 Repayment of unclaimed trust money
(1) The Director-General must, on application by a person entitled to
an amount of money paid under this Division into the
Compensation Fund or the Consolidated Fund, pay that amount
to the person out of the Compensation Fund.
(2) When an amount is paid out of the Compensation Fund in respect
of an amount that has been paid into the Consolidated Fund, the
Treasurer must, on application by the Director-General, pay that
amount to the Director-General out of the Consolidated Fund
(which is appropriated accordingly) for payment into the
Compensation Fund.
[20] Part 5, Division 5, heading
Omit ", controlled money".
[21] Section 66 Director-General may require information
Omit "controlled" from section 66 (1) (b).
[22] Section 71 Inspection of records of authorised deposit-taking
institutions
Omit "and controlled money" from section 71 (2) (e).
[23] Section 75 Requirement for audit
Omit "or controlled money" from section 75 (1) (a).
[24] Section 80 Duties of auditors
Omit "or controlled money" from section 80 (1).
[25] Section 101 Trust money
Omit "and controlled money accounts" wherever occurring in section 101 (2).
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Conveyancers Licensing Amendment Bill 2006
Amendments Schedule 1
[26] Section 110 Information about receivable property
Omit "and controlled money" from section 110 (4) (c).
[27] Section 172 Regulations
Insert after section 172 (2) (f):
(g) the waiver or refund of the whole or any part of a fee
payable under this Act.
[28] Schedule 1 Savings and transitional provisions
Insert before clause 1:
Part 1 General
[29] Schedule 1, clause 2
Insert at the end of clause 2 (1):
Conveyancers Licensing Amendment Act 2006
[30] Schedule 1
Insert after clause 2:
Part 2 Provisions consequent on the enactment
of this Act
[31] Schedule 1, Part 3
Insert after clause 16:
Part 3 Provisions consequent on the enactment
of the Conveyancers Licensing
Amendment Act 2006
17 Definition
In this Part:
amending Act means the Conveyancers Licensing Amendment
Act 2006.
18 Trust money and controlled money
(1) Subject to the regulations, Part 5, as amended by the amending
Act, extends to money received by a licensee, before the relevant
commencement date, that was received for or on behalf of
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Conveyancers Licensing Amendment Bill 2006
Schedule 1 Amendments
another person in connection with the licensee's conveyancing
business and is still held for or on behalf of that person at the
relevant commencement date.
(2) In this clause, the relevant commencement date means the date
of commencement of the amending Act, or of Part 5 of this Act,
whichever is the later.
19 Disqualified persons
The amendments made to section 10 of this Act (Disqualified
persons) by the amending Act do not apply in respect of any
licence issued before the commencement of the amending Act
(including a licence referred to in clause 3).
Page 14
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