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This is a Bill, not an Act. For current law, see the Acts databases.
Property, Stock and Business Agents
Amendment Bill 2012
No , 2012
A Bill for
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.
Clause 1 Property, Stock and Business Agents Amendment Bill 2012
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Property, Stock and Business Agents Amendment 3
Act 2012. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
Page 2
Property, Stock and Business Agents Amendment Bill 2012
Amendment of Property, Stock and Business Agents Act 2002 No 66 Schedule 1
Schedule 1 Amendment of Property, Stock and 1
Business Agents Act 2002 No 66 2
[1] Section 11 Registered salespersons and managers required to be 3
employed and supervised by licensee 4
Omit section 11 (3) and (4). Insert instead: 5
(3) The holder of a certificate of registration must not act as an 6
auctioneer, except as permitted by subsection (4). 7
(4) The holder of a certificate of registration as a stock and station 8
salesperson may auction livestock if the holder conducts the 9
auction: 10
(a) as an employee of the holder of a stock and station agent's 11
licence, and 12
(b) under the immediate and direct supervision of the holder of 13
a licence that allows the licensee to auction livestock 14
(whether or not that licensee is the licensee in charge of the 15
place of business at which the employee is employed or is 16
the employer of the employee). 17
[2] Section 16 Disqualified persons 18
Omit "or has failed to lodge a statutory declaration as required by 19
section 113," from section 16 (1) (o). 20
[3] Section 55 No entitlement to commission or expenses without agency 21
agreement 22
Insert at the end of section 55 (1): 23
Note. Section 55A allows a court or tribunal to order that commission 24
and expenses are recoverable in certain circumstances despite 25
subsection (1). 26
[4] Section 55 (4) and (5) 27
Omit the subsections. 28
[5] Section 55A 29
Insert after section 55: 30
55A Relief from disentitlement to commission and expenses 31
(1) A court or tribunal before which relevant proceedings are taken 32
may order that commission or expenses are wholly or partly 33
Page 3
Property, Stock and Business Agents Amendment Bill 2012
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66
recoverable by a licensee who would otherwise not be entitled to 1
the commission or expenses (under section 55) because of: 2
(a) a failure by the licensee to serve a copy of the relevant 3
agency agreement on the person within 48 hours after it 4
was signed by or on behalf of the person, or 5
(b) a failure of the relevant agency agreement to comply with 6
the requirements of the regulations. 7
(2) A court or tribunal is not to make such an order in circumstances 8
of a failure to serve a copy of the agency agreement within the 9
required time unless satisfied that: 10
(a) the failure was occasioned by inadvertence or other cause 11
beyond the control of the licensee, and 12
(b) the commission or expenses that will be recoverable if the 13
order is made are in all the circumstances fair and 14
reasonable, and 15
(c) failure to make the order would be unjust. 16
(3) A court or tribunal is not to make such an order in circumstances 17
of a failure of the agency agreement to comply with the 18
requirements of the regulations unless satisfied that: 19
(a) the failure is a minor failure, and 20
(b) no loss has been suffered as a result of the failure by the 21
person for whom or on whose behalf the services 22
concerned were performed, and 23
(c) failure to make the order would be unjust. 24
(4) Proceedings are relevant proceedings if they are proceedings 25
taken by a licensee for the recovery of commission or expenses 26
from a person or proceedings on a consumer claim relating to 27
commission or expenses (as referred to in section 36) in relation 28
to which a licensee is a respondent. 29
[6] Section 86 Trust money to be paid into trust account 30
Insert at the end of section 86 (4): 31
The notification must be in a form approved by the 32
Director-General and the licensee must serve a copy of the 33
notification on the Director-General within 14 days after the trust 34
account is opened. 35
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Property, Stock and Business Agents Amendment Bill 2012
Amendment of Property, Stock and Business Agents Act 2002 No 66 Schedule 1
[7] Section 86 (5) 1
Insert at the end of the subsection: 2
The notification must be in a form approved by the 3
Director-General. 4
[8] Section 86 (6) 5
Insert after section 86 (5) (before the penalty): 6
(6) Subsections (4) and (5) do not apply in respect of: 7
(a) a separate trust account kept on the instructions of a client 8
of a licensee or firm of licensees for the exclusive benefit 9
of the client, or 10
(b) a separate trust account opened by a licensee for the 11
exclusive benefit of both the vendor and the purchaser of 12
land. 13
[9] Part 7, Division 4 Unclaimed trust money 14
Omit the Division. 15
[10] Section 111 Requirement for audit 16
Omit section 111 (1) (b). Insert instead: 17
(b) if the auditor's report on the audit is a qualified report, 18
lodge the report with the Director-General. 19
[11] Section 111 (1A) 20
Insert after section 111 (1): 21
(1A) An auditor's report is a qualified report if it sets out any 22
discovery by the auditor that any breach of this Act or the 23
regulations has been committed, that there is any discrepancy 24
relating to the trust account to which the audit relates or that the 25
records or documents concerned are not kept in such a manner as 26
to enable them to be properly audited. 27
[12] Section 111 (3) 28
Omit the subsection. Insert instead: 29
(3) An auditor's report under this section must be kept for at least 3 30
years: 31
(a) by the licensee at the licensee's registered office (while the 32
licensee remains a licensee), or 33
(b) if the licensee ceases to be a licensee, by the former 34
licensee in his or her possession, custody or control unless 35
Page 5
Property, Stock and Business Agents Amendment Bill 2012
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66
the former licensee authorises some other person to have 1
possession, custody or control of the report, or 2
(c) by any other person who obtains possession, custody or 3
control of the report whether as a result of being the 4
personal representative of a licensee or by transfer of the 5
business of the licensee or otherwise. 6
[13] Section 112A 7
Insert after section 112: 8
112A Random audits 9
(1) The Director-General may at any time appoint a person qualified 10
to act as an auditor for the purposes of this Division to audit the 11
records and documents relating to any money held in a trust 12
account kept by a licensee and provide a report on the audit to the 13
Director-General. 14
(2) On production by the person of his or her instrument of 15
appointment as an auditor for the purposes of this section, the 16
auditor may require the licensee (or, in the absence of the 17
licensee, an associate of the licensee) to do any one or more of the 18
following things: 19
(a) produce to the auditor or any assistant of the auditor all 20
records and documents relating to any money held in a 21
trust account kept by the licensee and (in the case of 22
records stored electronically) produce any such record in 23
written form, 24
(b) give the auditor or any assistant of the auditor all 25
information relating to the records required to be produced 26
under this section, 27
(c) produce to the auditor or any assistant of the auditor all 28
authorities and orders to financial institutions and other 29
documents that may be reasonably required. 30
(3) The licensee or associate is guilty of an offence if the licensee or 31
associate, without reasonable excuse (proof of which lies on the 32
licensee or associate): 33
(a) refuses or fails to comply with a requirement under this 34
section, or 35
(b) otherwise hinders, obstructs or delays an auditor in the 36
exercise or performance of the auditor's functions under 37
this section. 38
Maximum penalty: 50 penalty units. 39
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Property, Stock and Business Agents Amendment Bill 2012
Amendment of Property, Stock and Business Agents Act 2002 No 66 Schedule 1
(4) In this section, associate of a licensee has the same meaning as in 1
Division 3 of Part 10. 2
[14] Section 113 Statutory declaration required when no trust money held or 3
received 4
Omit the section. 5
[15] Section 115 Qualifications of auditors 6
Insert after section 115 (1) (a): 7
(a1) is an authorised audit company within the meaning of the 8
Corporations Act, or 9
(a2) is a member of a professional accounting body within the 10
meaning of the Australian Securities and Investments 11
Commission Act 2001 of the Commonwealth and holds a 12
Public Practice Certificate or Certificate of Public Practice 13
issued by the body, or 14
[16] Section 116 Duties of auditors 15
Omit section 116 (1) (b). Insert instead: 16
(b) forward a copy of the report to the Director-General within 17
14 days after providing the report to the licensee. 18
[17] Section 116 (1) 19
Insert at the end of the subsection: 20
Maximum penalty: 50 penalty units. 21
[18] Section 184 Powers of accounts examiner 22
Omit "without lawful justification or excuse" from section 184 (2). 23
Insert instead "without reasonable excuse". 24
[19] Schedule 1 Savings and transitional provisions 25
Insert at the end of clause 1 (1): 26
Property, Stock and Business Agents Amendment Act 2012 27
Page 7
Property, Stock and Business Agents Amendment Bill 2012
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66
[20] Schedule 1 1
Insert at the end of the Schedule: 2
Part 4 Provisions consequent on enactment of 3
Property, Stock and Business Agents 4
Amendment Act 2012 5
24 Definition 6
In this Part: 7
2012 amending Act means the Property, Stock and Business 8
Agents Amendment Act 2012. 9
25 Recovery of commission and expenses 10
The amendments made to section 55 by the 2012 amending Act, 11
and section 55A as inserted by that Act, do not apply in respect 12
of an agency agreement entered into before the commencement 13
of section 55A. 14
26 Unclaimed money amendments 15
(1) An amendment made by the 2012 amending Act to the 16
Unclaimed Money Act 1995 extends to money held in a trust 17
account immediately before the commencement of the 18
amendment, subject to this clause. 19
(2) Division 4 (Unclaimed trust money) of Part 7 of this Act 20
continues to apply (despite its repeal) to and in respect of money 21
held in a trust account by a person who became a former licensee, 22
or the personal representative of a deceased licensee, before the 23
repeal of that Division. 24
(3) Section 9C (Trust money held by former licensee or personal 25
representative) of the Unclaimed Money Act 1995 does not apply 26
to or in respect of money held in a trust account by a person who 27
became a former licensee, or the personal representative of a 28
deceased licensee, before the commencement of that section. 29
(4) Division 4 (Unclaimed trust money) of Part 7 of this Act 30
continues to apply (despite its repeal) to and in respect of the 31
following: 32
(a) an unclaimed money statement under that Division 33
furnished (or required to have been furnished) to the 34
Director-General before the repeal of that Division, 35
(b) any money referred to in (or required to be referred to in) 36
any such unclaimed money statement, 37
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Property, Stock and Business Agents Amendment Bill 2012
Amendment of Property, Stock and Business Agents Act 2002 No 66 Schedule 1
(c) any money received by the Director-General under that 1
Division and paid under that Division into the 2
Compensation Fund or the Consolidated Fund before or 3
after the repeal of that Division. 4
(5) Without limiting subclause (4), section 99 (Repayment of 5
unclaimed trust money) of this Act continues to apply (despite its 6
repeal) to money paid under Division 4 of Part 7 into the 7
Compensation Fund or the Consolidated Fund before or after the 8
repeal of that Division. 9
Page 9
Property, Stock and Business Agents Amendment Bill 2012
Schedule 2 Amendment of Unclaimed Money Act 1995 No 75
Schedule 2 Amendment of Unclaimed Money Act 1
1995 No 75 2
[1] Section 6A 3
Insert before section 7: 4
6A Part does not apply to unclaimed agent trust money 5
This Part does not apply to money that is unclaimed money under 6
Part 2A (Trust money under Property, Stock and Business Agents 7
Act 2002). 8
[2] Part 2A 9
Insert after Part 2: 10
Part 2A Trust money under Property, Stock and 11
Business Agents Act 2002 12
9A Definitions 13
In this Part, licensee, former licensee and trust account have the 14
same meanings as in the Property, Stock and Business Agents 15
Act 2002. 16
9B Unclaimed trust money held by licensee 17
(1) Money that has been held by a licensee for more than 2 years in 18
a trust account kept by the licensee is unclaimed money for the 19
purposes of this Act. 20
(2) A licensee who has held money for more than 2 years in a trust 21
account kept by the licensee must make reasonable efforts: 22
(a) to identify and locate the owner of the money, and 23
(b) to ensure that the money is paid to the owner of the money. 24
Maximum penalty: 50 penalty units. 25
Note. Unclaimed money is required to be paid to the Chief 26
Commissioner after 30 June in each year. See section 10. 27
9C Unclaimed trust money held by former licensee or personal 28
representative 29
(1) Money held in a trust account by a former licensee or the personal 30
representative of a deceased licensee is unclaimed money for the 31
purposes of this Act but section 10 does not apply to the money. 32
Page 10
Property, Stock and Business Agents Amendment Bill 2012
Amendment of Unclaimed Money Act 1995 No 75 Schedule 2
(2) A former licensee, or the personal representative of a deceased 1
licensee, who holds unclaimed money must within the required 2
time for compliance with this section: 3
(a) lodge with the Chief Commissioner a return relating to the 4
unclaimed money in a form approved by the Chief 5
Commissioner, and 6
(b) pay the amount of the unclaimed money to the Chief 7
Commissioner. 8
(3) The required time for compliance with this section is 3 months 9
after the date on which the person ceased to be a licensee or 10
became the personal representative of the deceased licensee (or 11
such longer period as the Chief Commissioner may in a particular 12
case allow). 13
(4) The Chief Commissioner is to pay money received under this 14
section into the Consolidated Fund. 15
(5) A former licensee, or the personal representative of a deceased 16
licensee, who fails to comply with this section is guilty of an 17
offence and is liable: 18
(a) to a penalty not exceeding 50 penalty units, and 19
(b) to a further penalty not exceeding 5 penalty units for each 20
day after the period within which he or she was required to 21
comply during which the failure continues. 22
9D Regulations 23
Money is not unclaimed money under this Part if: 24
(a) the money is, or is of a class, prescribed by the regulations 25
as exempt from the operation of this Part, or 26
(b) the money is held by an enterprise that is, or is of a class, 27
prescribed by the regulations as exempt from the operation 28
of this Part. 29
[3] Section 28 General power to make assessment 30
Omit "section 10 (1) or 13B (1)" from section 28 (6). 31
Insert instead "section 9C, 10 or 13B". 32
Page 11
Property, Stock and Business Agents Amendment Bill 2012
Schedule 2 Amendment of Unclaimed Money Act 1995 No 75
[4] Schedule 2 Savings, transitional and other provisions 1
Omit clause 1 (1). Insert instead: 2
(1) The regulations may contain provisions of a savings or 3
transitional nature consequent on the enactment of this Act and 4
any Act that amends this Act. 5
Page 12
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