New South Wales Consolidated Regulations New South Wales Consolidated Regulationsclause 11M
In this Schedule--
"commercial agent" means a person who carries out a commercial agent activity,
whether or not the person holds a commercial agent licence.
"commercial agent activity" has the same meaning as in the Act, Part 5.
"disqualified person" has the same meaning as in the Act, section 60A.
(1) A commercial agent must have a knowledge and an understanding of the following provisions--(a) the Act, Part 5,(b) this Regulation, Part 2B,(c) this Schedule,(d) all other laws relevant to carrying out commercial agent activities as may be necessary to enable the person to carry out the commercial agent activity lawfully.
(2) Other relevant laws include laws relating to fair trading, competition and consumer protection, credit activities, bankruptcy, anti-discrimination and privacy.
A commercial agent must act in accordance with a client's instructions unless it would be contrary to the following provisions or otherwise unlawful to do so--
(a) the Act, Part 5,
(b) this Regulation, Part 2B,
(c) this Schedule.
A commercial agent must not accept instructions to act, or continue to act, as a commercial agent for a client if doing so would place the commercial agent's interests in conflict with the client's interests.
If a commercial agent is notified by the Secretary that an exclusion order or a restriction order has been made with respect to an employee of the commercial agent who is employed to carry out a commercial agent activity, the commercial agent must immediately take all reasonable steps to ensure the employee complies with the exclusion order or restriction order while the employee continues in employment with the agent.
A commercial agent must not use, or threaten to use, physical force or violence in the course of carrying out a commercial agent activity.
A commercial agent must not, for the purpose of carrying out a commercial agent activity, enter, attempt to enter or threaten to enter a private dwelling without the consent of the owner or occupant of the dwelling.
A commercial agent must not, in the course of carrying out a commercial agent activity, engage in--
(a) harassment or stalking or other coercive or intimidating conduct with the intention of causing physical or mental harm or of arousing apprehension or fear, or
(b) unconscionable conduct.
(1) A commercial agent must not carry out a commercial agent activity that is debt collection--(a) if the commercial agent knows or ought reasonably to know--(i) a statutory limitation period applying to the collection of, or liability for, the relevant debt has expired, or(ii) the grounds on which the relevant debt is claimed are unsubstantiated, or(iii) there are other grounds on which liability for the relevant debt is excluded or can be denied, and(b) unless the commercial agent believes on reasonable grounds the person from whom collection of the relevant debt is sought is liable for the debt.
(2) A commercial agent must provide to the person from whom collection of a debt is sought evidence of the grounds on which the commercial agent holds the belief that the person is liable for the debt when requested by the person to do so.
(1) This clause applies to commercial agents carrying out a commercial agent activity that is debt collection.
(2) A commercial agent must not contact a person--(a) by a method that the person has expressly requested the commercial agent not to use unless the commercial agent has exhausted all other available methods of contacting the person, or(b) after the person has expressly requested the commercial agent not to contact the person again, unless the contact is solely for the purpose of advising the person that the creditor intends to take further action to recover the relevant debt from the person, or(c) outside the hours shown in the following table (
"reasonable hours" )--
Contact by telephone--person not at person's place of business or employment Contact in person--not at person's place of business or employment Contact in person--at person's place of business or employment 7:30am-9pm on weekdays, except public holidays 9am-9pm on any day of the week, except public holidays 9am-5pm on weekdays 9am-9pm on weekends, except public holidays
(3) However, a commercial agent may contact a person outside reasonable hours if the commercial agent has made all reasonable efforts to contact the person during reasonable hours and has failed to do so.
(4) In this clause--
"telephone" includes person to person audio or audio visual electronic communication.
A commercial agent must not misinform or otherwise mislead or deceive a person in the course of carrying out a commercial agent activity, including by impersonating another person or misrepresenting the commercial agent's identity.
(1) A commercial agent must not request, demand or collect from a person who is the subject of a commercial agent activity a payment for the costs or expenses incurred by the commercial agent in connection with carrying out the commercial agent activity.
(2) If the commercial agent activity is debt collection--this section does not limit a right that the person to whom the debt the subject of the commercial agent activity is payable (the
"creditor" ) may have at law in relation to the recovery from the debtor of the creditor's costs of recovering the debt.
(1) A commercial agent must not disclose, either expressly or by implication, that a person is the subject of a commercial agent activity to another person unless the disclosure is--(a) made with the consent of the person who is the subject of the commercial agent activity, or(b) reasonably necessary to the carrying out of the commercial agent activity by the commercial agent, or(c) made with another lawful excuse.
(2) A commercial agent must not threaten a person with disclosure to another person that the person is the subject of a commercial agent activity unless the threat relates to a disclosure that is permitted under subclause (1).
(1) A commercial agent must deposit all money received in connection with carrying out a commercial agent activity into an account with an authorised deposit-taking institution opened and held by the agent for that purpose.
(2) However, if the commercial agent is instructed by the commercial agent's client to hold the money on trust, the agent must, as soon as practicable, pay the money into a separate trust account opened and held by the agent for that purpose.
(3) A commercial agent who holds money on trust must, as soon as practicable after being directed to do so by the commercial agent's client and in accordance with the client's instructions--(a) pay the money to the person for whose benefit the money is held, or(b) otherwise disburse the money.
(1) A commercial agent must maintain a record containing full particulars of all transactions in relation to an account, including a trust account, held with an authorised deposit-taking institution in connection with a commercial agent activity.
(2) The record may be kept in hard copy or electronic form.
(3) Information must be able to be produced from the record on demand in permanent legible form in the English language.
(4) In the case of a trust account--the commercial agent must also maintain a record, compiled in chronological sequence, of all changes, including creation, amendment or deletion, to the following information--(a) the name and address of the person for whose benefit the money is held,(b) the code reference number, if any, of the person for whose benefit the money is held,(c) the trust account number.
(5) The record of changes must disclose details of the information before and after the change.
A record required to be kept by the Act or this Regulation must be kept for a period of not less than 3 years from the date on which the record was created.
If money has been held by a commercial agent for more than 2 years in a trust account kept by the commercial agent under clause 14 (
"unclaimed money" ), the commercial agent must make reasonable efforts to--(a) identify and locate the owner of the unclaimed money, and(b) if the owner has been identified and located--ensure the unclaimed money is paid to the owner as soon as practicable after locating the owner.
(1) A commercial agent must take all reasonable steps to ensure the commercial agent does not employ or otherwise engage a disqualified person to carry out a commercial agent activity.
(2) A commercial agent must notify the Secretary in writing within 7 days of becoming aware a person employed or otherwise engaged by the commercial agent to carry out a commercial agent activity is a disqualified person.
A commercial agent must take all reasonable steps to resolve a complaint made to the commercial agent concerning the carrying out of a commercial agent activity by the commercial agent or an employee or agent of the commercial agent.