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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Property, Stock and Business Agents
Amendment Bill 2013
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Property, Stock and Business Agents Act
2002 No 66 3
Schedule 2 Amendment of Unclaimed Money Act 1995 No 75 10
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, , 2013
New South Wales
Property, Stock and Business Agents
Amendment Bill 2013
Act No , 2013
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.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Property, Stock and Business Agents Amendment Bill 2013
The Legislature of New South Wales enacts:
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.
Page 2
Property, Stock and Business Agents Amendment Bill 2013
Amendment of Property, Stock and Business Agents Act 2002 No 66 Schedule 1
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
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Property, Stock and Business Agents Amendment Bill 2013
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66
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.
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Property, Stock and Business Agents Amendment Bill 2013
Amendment of Property, Stock and Business Agents Act 2002 No 66 Schedule 1
[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
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Property, Stock and Business Agents Amendment Bill 2013
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66
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.
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Property, Stock and Business Agents Amendment Bill 2013
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
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
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Property, Stock and Business Agents Amendment Bill 2013
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66
[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,
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Property, Stock and Business Agents Amendment Bill 2013
Amendment of Property, Stock and Business Agents Act 2002 No 66 Schedule 1
(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.
Page 9
Property, Stock and Business Agents Amendment Bill 2013
Schedule 2 Amendment of Unclaimed Money Act 1995 No 75
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.
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Property, Stock and Business Agents Amendment Bill 2013
Amendment of Unclaimed Money Act 1995 No 75 Schedule 2
(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".
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Property, Stock and Business Agents Amendment Bill 2013
Schedule 2 Amendment of Unclaimed Money Act 1995 No 75
[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.
Page 12
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