New South Wales Consolidated Acts

PROPERTY AND STOCK AGENTS ACT 2002 - SECT 16

16 Disqualified persons

(1) A person is a disqualified person for the purposes of this Act if the person--

(a) has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Secretary has determined under subsection (2) that the offence should be ignored, or

(b) has a conviction that was recorded in the last 5 years for an offence under section 13 (Lending of licence or certificate of registration prohibited) of this Act, unless the Secretary has determined under subsection (2) that the offence should be ignored, or

(f) is a mentally incapacitated person, or

(g) is disqualified from holding a licence, certificate of registration or other authority under a corresponding Act or is the holder of such a licence, certificate of registration or other authority that is suspended, or

(h) 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

(i) is in partnership with a person who is a disqualified person, or

(j) is for the time being declared to be a disqualified person under Part 12 (Complaints and disciplinary action), or

(k) is a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed, or

(l) has failed to pay a contribution or levy payable by the person under Part 10 (Compensation Fund) and the failure continues, or

(m) has failed to pay an amount due as a debt to the Crown by way of recovery of an amount paid out of the Compensation Fund and the failure continues, or

(n) has failed to pay any monetary penalty payable by the person under Part 12 (Complaints and disciplinary action) or has failed to comply with a direction given by the Secretary under that Part, and the failure continues, or

(o) has failed to comply with the requirements of section 111 to have an audit of the records and documents relating to any trust money carried out within the required time, unless the Secretary determines that in the circumstances that failure should not disqualify the person, or

(p) is in breach of any provision of this Act or the regulations that is prescribed by the regulations as a disqualifying breach.

(1A) A person is also a disqualified person for the purposes of this Act (except for the purposes of eligibility to hold a certificate of registration) 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, concerned in the management of, or a director of, a Chapter 5 body corporate except in a case of the voluntary winding up of the body corporate, or

(d) is a person--

(i) who was, at any time in the last 3 years, concerned in the management of, or a director of, a body corporate that, within 12 months after the person ceasing to be such a person or director, became a Chapter 5 body corporate except in the case of a voluntary winding up of the body corporate, and

(ii) who failed (while concerned in the management of, or a director of, that body corporate) to take all reasonable steps to avoid the body corporate becoming a Chapter 5 body corporate.

(2) The Secretary may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.

(2A) The Secretary may determine that the factors listed in subsection (1) (h) or (k) should be ignored for the purposes of this section if, on the basis of information provided to the Secretary, the Secretary considers it is appropriate to do so.

(2B) The Secretary may exempt a person from the operation of subsection (1A) (a), (b) or (c) by--

(a) certifying, in the case of exemption from subsection (1A) (a), that the Secretary is satisfied that the person took all reasonable steps to avoid the bankruptcy concerned, or

(b) certifying, in the case of exemption from subsection (1A) (b), that the Secretary 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 (1A) (c), that the Secretary is satisfied that the person took all reasonable steps (while concerned in the management of, or a director of, the body corporate) to avoid the body corporate becoming a Chapter 5 body corporate.

(2C) Subsection (1A) (d) does not operate to make a person a disqualified person unless the Secretary has served a notice on the person giving the person the opportunity to make oral or written submissions to the Secretary within a period (not being 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 a Chapter 5 body corporate and the Secretary is satisfied that the person failed to take all such steps.

(2D) In determining for the purposes of subsection (2B) or (2C) what reasonable steps could have been taken by a person to avoid a particular outcome, the Secretary 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.

(3) In this section--

"Chapter 5 body corporate" has the same meaning as in the Corporations Act.