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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
AGENTS AND MOTOR
DEALERS BILL 1997
Queensland
AGENTS AND MOTOR DEALERS BILL
1997
TABLE OF PROVISIONS
Section Page
CHAPTER 1--PRELIMINARY
PART 1--INTRODUCTION
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3 Application of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4 Exemption--regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5 Exemption--auctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6 Exemption--public officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7 Exemption--financial institutions, trustee companies etc. . . . . . . . . . . . . . 30
8 Exemption--accountants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9 Exemption--solicitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10 Exemption--pastoral houses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11 Exemption--livestock sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
PART 2--OBJECTS
12 Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
PART 3--INTERPRETATION
13 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
14 Use of certain tags . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
15 Meaning of "beneficial interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
16 Meaning of "in charge" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
17 Meaning of "motor vehicle" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18 Meaning of "open listing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
19 Difference between "sole agency" and "exclusive agency" . . . . . . . . . . . . 37
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CHAPTER 2--LICENSING
PART 1--CATEGORIES OF LICENCES
20 Categories of licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
PART 2--HOW TO OBTAIN A LICENCE
21 Steps involved in obtaining a licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
PART 3--APPLICATIONS FOR LICENCES
22 Applicant must advertise intention to apply for licence . . . . . . . . . . . . . . . . 40
23 Application for licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
24 Applicant must state business address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
25 Requirement to give information or material about application . . . . . . . . . 42
26 Applicant intending to carry on business to advise name of auditor . . . . . . 43
PART 4--SUITABILITY OF APPLICANTS AND LICENSEES
27 Suitability of applicants and licensees--individuals . . . . . . . . . . . . . . . . . . 43
28 Suitability of applicants and licensees--corporations . . . . . . . . . . . . . . . . . 43
29 Chief executive must consider suitability of applicants and licensees . . . . 44
30 Public trustee is a suitable person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
31 Chief executive of department is suitable person . . . . . . . . . . . . . . . . . . . . . 46
32 Investigations about suitability of applicants and licensees . . . . . . . . . . . . 46
33 Criminal history is confidential document . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
34 Requirement to give chief executive information or material
about suitability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
PART 5--ELIGIBILITY FOR LICENCE
Division 1--Restricted letting agent's licence
35 Eligibility for restricted letting agent's licence . . . . . . . . . . . . . . . . . . . . . . . 47
Division 2--Real estate agent's licence
36 Eligibility for real estate agent's licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Division 3--Pastoral house licences
37 Eligibility for pastoral house licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
38 Eligibility for pastoral house director's licence . . . . . . . . . . . . . . . . . . . . . . . 50
39 Eligibility for pastoral house manager's licence . . . . . . . . . . . . . . . . . . . . . . 50
40 Eligibility for pastoral house auctioneer's licence . . . . . . . . . . . . . . . . . . . . 50
Division 4--Auctioneer's and trainee auctioneer's licences
41 Eligibility for auctioneer's licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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42 Eligibility for trainee auctioneer's licence . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Division 5--Motor dealer's licence
43 Eligibility for motor dealer's licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Division 6--Commercial agent's licence
44 Eligibility for commercial agent's licence . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Division 7--Public trustee and chief executives
45 Public trustee is eligible to obtain certain licences . . . . . . . . . . . . . . . . . . . 53
46 Chief executive of department is eligible to obtain certain licences . . . . . 53
PART 6--OBJECTIONS
47 Persons may object to issue, renewal or restoration of licences . . . . . . . . . 54
48 Chief executive to advise applicant of objection . . . . . . . . . . . . . . . . . . . . . 54
49 Applicant may make submission about objections . . . . . . . . . . . . . . . . . . . . 55
PART 7--ISSUE OF LICENCES
50 Chief executive must have regard to objections and applicant's
submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
51 Chief executive may issue or refuse to issue licence . . . . . . . . . . . . . . . . . . 55
52 Licence--public trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
53 Licence--chief executive of department . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
54 Licence--conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
PART 8--RESTRICTIONS ON PERFORMING FUNCTIONS
UNDER LICENCES
55 Restriction--corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
56 Restriction--individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
57 Restriction--conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
PART 9--RENEWAL AND RESTORATION OF LICENCES
Division 1--Renewal
58 Application for renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
59 Chief executive must have regard to objections and licensee's
submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
60 Chief executive may renew or refuse to renew licence . . . . . . . . . . . . . . . . 59
61 Licence taken to be in force while application for renewal is
considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Division 2--Restoration
62 Application for restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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63 Chief executive must have regard to objections and licensee's
submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
64 Chief executive may restore or refuse to restore licence . . . . . . . . . . . . . . . 62
65 Licence taken to be in force while application for restoration is
considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
PART 10--DEALINGS WITH LICENCES
Division 1--Substitute licences
66 Appointment of substitute licensee--principal licensee--individual . . . . . 63
67 Appointment of substitute licensee--employed licensee in
charge of a licensee's business at a place . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
68 Appointment of substitute licensee--pastoral house manager in
charge of a licensee's business at a place . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
69 Chief executive may appoint or refuse to appoint substitute licensee . . . . 67
70 Substitute licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
71 Limitation on period of substitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Division 2--General
72 Transfer of licence prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
73 Amendment of licence conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
74 Licensee to return licence for amendment of conditions . . . . . . . . . . . . . . . 70
75 Surrender of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
76 Licence may be deactivated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
PART 11--IMMEDIATE SUSPENSION AND CANCELLATION
OF LICENCES
77 Immediate suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
78 Immediate cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
PART 12--GENERAL PROVISIONS ABOUT LICENCES
79 Form of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
80 Display of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
81 Term of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
82 Replacement licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
83 Register of licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
84 Licensees to notify chief executive of changes in circumstances . . . . . . . . 76
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CHAPTER 3--RESTRICTED LETTING AGENTS AND THEIR
EMPLOYEES
PART 1--RESTRICTED LETTING AGENT
Division 1--Restricted letting agent's licence
85 What a restricted letting agent's licence authorises . . . . . . . . . . . . . . . . . . . 76
Division 2--Responsibilities of persons in charge of licensee's
business for employees
86 Responsibility for acts and omissions of restricted letting agent
(employee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
PART 2--RESTRICTED LETTING AGENTS (EMPLOYEE)
Division 1--Introduction
87 Meaning of "restricted letting agent (employee)" . . . . . . . . . . . . . . . . . . . . 78
Division 2--Provisions about employment
88 Persons not eligible for employment as restricted letting agents
(employee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
89 Employment as restricted letting agent (employee) . . . . . . . . . . . . . . . . . . . 79
90 Restricted letting agent must give employees an employment authority . . 79
91 Court may declare person as ineligible person . . . . . . . . . . . . . . . . . . . . . . . 80
Division 3--Functions of restricted letting agents (employee)
92 Functions of restricted letting agent (employee) . . . . . . . . . . . . . . . . . . . . . 81
PART 3--CONDUCT PROVISIONS
Division 1--Licensee to be in charge of a licensee's business
93 Carrying on of business under restricted letting agent's licence . . . . . . . . . 81
94 Licensee to be in charge of a restricted letting agent's business
at a place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Division 2--Appointment
95 Appointment of restricted letting agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Division 3--Recovery of commission or reward
96 Restriction on commission payable as a percentage . . . . . . . . . . . . . . . . . . 84
97 Restriction on remedy for commission or reward . . . . . . . . . . . . . . . . . . . . . 85
98 Excess commission etc. to be repaid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Division 4--Code of conduct
99 Code of conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
100 Complaints about conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
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PART 4--GENERAL
101 Registered office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
102 Restricted letting agent to notify chief executive of change in
place of business etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
103 Publication of name of licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
104 Principal licensee must keep employment register . . . . . . . . . . . . . . . . . . . 89
PART 5--OFFENCES
105 Acting as restricted letting agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
106 Restricted letting agent must not act for more than 1 party . . . . . . . . . . . . . 90
107 Production of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
108 Employment of ineligible persons in restricted letting agent's business . . . 91
CHAPTER 4--REAL ESTATE AGENTS AND THEIR
SALESPERSONS
PART 1--REAL ESTATE AGENTS
Division 1--Real estate agent's licence
109 What a real estate agent's licence authorises . . . . . . . . . . . . . . . . . . . . . . . . 92
Division 2--Responsibilities of persons in charge of a licensee's
business for salespersons
110 Responsibility for acts and omissions of salespersons . . . . . . . . . . . . . . . . . 92
PART 2--REAL ESTATE SALESPERSONS
Division 1--Introduction
111 Meaning of "real estate salesperson" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Division 2--Provisions about employment
112 Persons not eligible for employment as real estate salespersons . . . . . . . . 93
113 Employment as real estate salespersons . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
114 Real estate agent must give salespersons "employment authority" . . . . . . 94
115 Court may declare person as ineligible person . . . . . . . . . . . . . . . . . . . . . . . 95
Division 3--Functions of real estate salespersons
116 Functions of real estate salesperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
PART 3--CONDUCT PROVISIONS
Division 1--Licensee to be in charge of a licensee's business
117 Carrying on of business under real estate agent's licence . . . . . . . . . . . . . . 96
118 Licensee to be in charge of a real estate agent's business at a place . . . . 96
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Division 2--Appointment
119 Appointment of real estate agent--general . . . . . . . . . . . . . . . . . . . . . . . . . . 97
120 Appointment of real estate agent--sole and exclusive agencies . . . . . . . . 99
121 Real estate agent may be reappointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
122 Avoidance of appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Division 3--Recovery of commission or reward
123 Restriction on commission payable as a percentage . . . . . . . . . . . . . . . . . 101
124 Restriction on remedy for commission or reward . . . . . . . . . . . . . . . . . . . . 101
125 Excess commission etc. to be repaid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Division 4--Interests in property
126 Definition for div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
127 Beneficial interest--options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
128 Beneficial interest--other than options . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
129 Additional orders court may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
130 Non-application of s 128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Division 5--Representations about finance
131 Definition for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
132 Representations about availability of finance . . . . . . . . . . . . . . . . . . . . . . . 106
133 Buyer's rights after misrepresentation about availability of finance . . . . . 107
134 Application of ss 132 and 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
135 Liability to punishment under s 132 or 133 additional to other
liabilities at law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Division 6--Lands not lawfully useable for residential purposes
136 Definition for div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
137 Application of div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
138 Notice to be given about vacant land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
139 Buyer's rights if notice materially defective or not given . . . . . . . . . . . . . 111
140 Liability to punishment under s 138 or 139 additional to other
liabilities at law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Division 7--Sales of certain businesses
141 Application of div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
142 Notice to be given about sale of restricted letting agent's business . . . . . 113
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Division 8--Code of conduct
143 Code of conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
144 Complaints about conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
PART 4--GENERAL
145 Registered office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
146 Real estate agent must notify chief executive of change in place
of business etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
147 Publication of name of licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
148 Principal licensee must keep employment register . . . . . . . . . . . . . . . . . . 116
PART 5--OFFENCES
149 Acting as real estate agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
150 Real estate agent must not act for more than 1 party . . . . . . . . . . . . . . . . . 118
151 Production of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
152 Employment of ineligible persons in real estate business . . . . . . . . . . . . . 119
153 Other offences about employment as real estate salespersons . . . . . . . . . 120
CHAPTER 5--PASTORAL HOUSES, PASTORAL HOUSE
LICENSEES AND PASTORAL HOUSE SALESPERSONS
PART 1--PASTORAL HOUSES
Division 1--Pastoral house licences
154 What a pastoral house licence authorises . . . . . . . . . . . . . . . . . . . . . . . . . . 120
155 What a pastoral house director's licence authorises . . . . . . . . . . . . . . . . . . 121
156 What a pastoral house manager's licence authorises . . . . . . . . . . . . . . . . . 121
157 What a pastoral house auctioneer's licence authorises . . . . . . . . . . . . . . . 122
Division 2--Pastoral house responsible for acts and omissions of
salespersons
158 Responsibility for acts and omissions of pastoral house salespersons . . . . 122
PART 2--PASTORAL HOUSE SALESPERSONS
Division 1--Introduction
159 Meaning of "pastoral house salesperson" . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Division 2--Provisions about employment
160 Persons not eligible for employment as salespersons . . . . . . . . . . . . . . . . . 123
161 Employment as pastoral house salespersons . . . . . . . . . . . . . . . . . . . . . . . . 124
162 Pastoral house must give salespersons "employment authority" . . . . . . . . 124
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163 Court may declare person as ineligible person . . . . . . . . . . . . . . . . . . . . . . 125
Division 3--Functions of pastoral house salespersons
164 Functions of pastoral house salespersons . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
PART 3--CONDUCT PROVISIONS
Division 1--Licensee to be in charge of a licensee's business
165 Carrying on of business under pastoral house licence . . . . . . . . . . . . . . . . 126
166 Licensee to be in charge of pastoral house's business at a place . . . . . . . 126
Division 2--Appointment
167 Appointment of pastoral house--general . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
168 Appointment of pastoral house--sole and exclusive agencies . . . . . . . . . 129
169 Pastoral house may be reappointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
170 Avoidance of appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Division 3--Recovery of commission or reward
171 Restriction on commission payable as a percentage . . . . . . . . . . . . . . . . . 131
172 Restriction on remedy for commission or reward . . . . . . . . . . . . . . . . . . . . 132
173 Excess commission etc. to be repaid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Division 4--Interests in property
174 Definition for div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
175 Beneficial interest--options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
176 Beneficial interest--other than options . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
177 Additional orders court may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
178 Non-application of s 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Division 5--Representations about finance
179 Definition for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
180 Representations about availability of finance . . . . . . . . . . . . . . . . . . . . . . . 137
181 Buyer's rights after misrepresentation about availability of finance . . . . . 138
182 Application of ss 180 and 181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
183 Liability to punishment under s 180 or 181 additional to other
liabilities at law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Division 6--Lands not lawfully useable for residential purposes
184 Definition for div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
185 Application of div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
186 Notice to be given about vacant land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
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187 Buyer's rights if notice not given or materially defective . . . . . . . . . . . . . 143
188 Liability to punishment under s 186 or 187 additional to other
liabilities at law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Division 7--Code of conduct
189 Code of conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
190 Complaints about conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
PART 4--GENERAL
191 Registered offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
192 Pastoral house etc. must notify chief executive of certain changes . . . . . 146
193 Publication of name of licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
194 Pastoral house to keep employment register . . . . . . . . . . . . . . . . . . . . . . . . 148
PART 5--OFFENCES
195 Acting as pastoral house . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
196 Acting as pastoral house director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
197 Acting as pastoral house manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
198 Acting as pastoral house auctioneer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
199 Pastoral house must not act for more than 1 party . . . . . . . . . . . . . . . . . . . 151
200 Production of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
201 Employment of ineligible persons in pastoral house business . . . . . . . . . . 152
202 Other offences about employment as pastoral house salespersons . . . . . . 153
CHAPTER 6--AUCTIONEERS AND TRAINEE AUCTIONEERS
PART 1--AUCTIONEERS
203 What an auctioneer's licence authorises . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
PART 2--TRAINEE AUCTIONEERS
204 What a trainee auctioneer's licence authorises . . . . . . . . . . . . . . . . . . . . . 154
PART 3--CONDUCT PROVISIONS
Division 1--Licensee to be in charge of a licensee's business
205 Carrying on of business under auctioneer's licence . . . . . . . . . . . . . . . . . . 154
206 Licensee to be in charge of auctioneer's business at a place . . . . . . . . . . 155
Division 2--Appointment
207 Appointment of auctioneer--general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
208 Appointment of auctioneer--sole and exclusive agencies . . . . . . . . . . . . . 157
209 Auctioneers may be reappointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
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210 Avoidance of appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Division 3--Chattel auctions
211 Buyer's premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Division 4--Recovery of commission or reward
212 Restriction on commission payable as a percentage . . . . . . . . . . . . . . . . . 159
213 Restriction on remedy for commission or reward . . . . . . . . . . . . . . . . . . . . 159
214 Excess commission etc. to be repaid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Division 5--Interests in property
215 Definition for div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
216 Beneficial interest--options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
217 Beneficial interest--other than options . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
218 Additional orders court may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
219 Non-application of s 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Division 6--Representations about finance
220 Definition for div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
221 Representations about availability of finance . . . . . . . . . . . . . . . . . . . . . . . 165
222 Buyer's rights after misrepresentation about availability of finance . . . . . 166
223 Application of ss 221 and 222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
224 Liability to punishment under s 221 or 222 additional to other
liabilities at law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Division 7--Lands not lawfully useable for residential purposes
225 Definition for div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
226 Application of div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
227 Notice to be given about vacant land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
228 Buyer's rights if notice not given or materially defective . . . . . . . . . . . . . 170
229 Liability to punishment under s 227 or 228 additional to other
liabilities at law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Division 8--Sales of livestock
230 Sales of livestock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
231 Protection for auctioneer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Division 9--Guarantee of title for motor vehicles
232 Guarantee of title for motor vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
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Division 10--Code of conduct
233 Code of conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
234 Complaints about conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
PART 4--STATUTORY WARRANTY
235 Definitions for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
236 Meaning of "defect" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
237 Meaning of "warranty period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
238 Application of pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
239 Certain vehicles without statutory warranty to be identified when
offered for sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
240 Buyer to be given notice about statutory warranty . . . . . . . . . . . . . . . . . . . 177
241 Statutory warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
242 Defects not covered by statutory warranty . . . . . . . . . . . . . . . . . . . . . . . . . . 178
243 Buyer's obligations under statutory warranty . . . . . . . . . . . . . . . . . . . . . . . . 179
244 Seller to record details of extension of warranty period . . . . . . . . . . . . . . . 179
245 Seller to advise whether defect covered by statutory warranty . . . . . . . . . 179
246 Seller's obligation to repair defects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
247 Seller's failure to repair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
248 Applications for more than prescribed amount . . . . . . . . . . . . . . . . . . . . . . 182
PART 5--GENERAL
Division 1--Auctioneers
249 Registered office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
250 Auctioneer must notify chief executive of change in place of
business etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
251 Publication of name of licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Division 2--Trainee auctioneers
252 Registered office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
253 Trainee auctioneer must notify chief executive of change in
registered office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
PART 6--OFFENCES
254 Acting as auctioneer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
255 Acting as trainee auctioneer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
256 Auctioneer must not act for more than 1 party . . . . . . . . . . . . . . . . . . . . . . 186
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257 Trainee auctioneer must not carry on business etc. . . . . . . . . . . . . . . . . . . 186
258 Production of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
CHAPTER 7--MOTOR DEALERS AND THEIR
SALESPERSONS
PART 1--MOTOR DEALERS
Division 1--Motor dealer's licence
259 What a motor dealer's licence authorises . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Division 2--Motor dealer responsible for acts and omissions of
salespersons
260 Responsibility for acts and omissions of motor salespersons . . . . . . . . . . . 187
PART 2--MOTOR SALESPERSONS
Division 1--Introduction
261 Meaning of "motor salesperson" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Division 2--Provisions about employment
262 Persons not eligible for employment as motor salespersons . . . . . . . . . . . 188
263 Employment as motor salespersons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
264 Motor dealer must give salespersons "employment authority" . . . . . . . . . 189
265 Court may declare person as ineligible person . . . . . . . . . . . . . . . . . . . . . . 190
Division 3--Functions of motor salespersons
266 Functions of motor salespersons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
PART 3--CONDUCT PROVISIONS
Division 1--Licensee to be in charge of a licensee's business
267 Carrying on of business under motor dealer's licence . . . . . . . . . . . . . . . . 191
268 Licensee to be in charge of motor dealer's business at a place . . . . . . . . 191
Division 2--Consignment selling
269 Appointment--sale on consignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
270 Trade-ins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Division 3--Recovery of commission or reward
271 Restriction on commission payable as a percentage . . . . . . . . . . . . . . . . . 194
272 Restriction on remedy for commission or reward . . . . . . . . . . . . . . . . . . . . 195
273 Excess commission etc. to be repaid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
Division 4--Interests in property
274 Definition for div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
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275 Beneficial interest--options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
276 Beneficial interest--other than options . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
277 Additional orders court may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Division 5--Code of conduct
278 Code of conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
279 Complaints about conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
PART 4--GUARANTEE OF TITLE
280 Guarantee of title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
PART 5--STATUTORY WARRANTY
281 Definitions for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
282 Meaning of "defect" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
283 Meaning of "warranty period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
284 Application of pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
285 Certain vehicles without statutory warranty to be identified when
offered for sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
286 Buyer to be given notice about statutory warranty . . . . . . . . . . . . . . . . . . . 203
287 Statutory warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
288 Defects not covered by statutory warranty . . . . . . . . . . . . . . . . . . . . . . . . . . 204
289 Buyer's obligations under statutory warranty . . . . . . . . . . . . . . . . . . . . . . . . 205
290 Seller to record details of extension of warranty period . . . . . . . . . . . . . . . 206
291 Seller to advise whether defect covered by statutory warranty . . . . . . . . . 206
292 Seller's obligation to repair defects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
293 Seller's failure to repair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
294 Applications for more than prescribed amount . . . . . . . . . . . . . . . . . . . . . . 208
PART 6--GENERAL
295 Registered office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
296 Motor dealer's premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
297 Motor dealer must notify chief executive of change in place of
business etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
298 Publication of name of licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
299 Principal licensee to keep employment register . . . . . . . . . . . . . . . . . . . . . 211
300 Motor dealer to keep transactions register . . . . . . . . . . . . . . . . . . . . . . . . . . 211
301 Motor dealer to obtain statement from seller of vehicle . . . . . . . . . . . . . . 212
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302 Motor dealer to give statement to buyer of vehicle . . . . . . . . . . . . . . . . . . 212
303 Contract of sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
PART 7--OFFENCES
304 Acting as motor dealer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
305 Motor dealer must not act for more than 1 party . . . . . . . . . . . . . . . . . . . . . 214
306 Production of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
307 Employment of ineligible persons in motor dealer business . . . . . . . . . . . 214
308 Other offences about employment as motor salespersons . . . . . . . . . . . . . 215
CHAPTER 8--COMMERCIAL AGENTS AND THEIR
EMPLOYEES
PART 1--COMMERCIAL AGENTS
Division 1--Commercial agent's licence
309 What a commercial agent's licence authorises . . . . . . . . . . . . . . . . . . . . . 216
Division 2--Commercial agent responsible for acts and omissions of
employees
310 Responsibility for acts and omissions of commercial agent (employee) . 217
PART 2--COMMERCIAL AGENTS (EMPLOYEE)
Division 1--Introduction
311 Meaning of "commercial agent (employee)" . . . . . . . . . . . . . . . . . . . . . . . 217
Division 2--Provisions about employment
312 Persons not eligible for employment as commercial agents (employee) . 218
313 Employment as commercial agent (employee) . . . . . . . . . . . . . . . . . . . . . 218
314 Commercial agent must give commercial agents (employee)
"employment authority" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
315 Court may declare person as ineligible person . . . . . . . . . . . . . . . . . . . . . . 219
Division 3--Functions of commercial agents (employee)
316 Functions of commercial agent (employee) . . . . . . . . . . . . . . . . . . . . . . . . 220
PART 3--CONDUCT PROVISIONS
Division 1--Licensee to be in charge of a licensee's business
317 Carrying on of business under commercial agent's licence . . . . . . . . . . . . 220
318 Licensee to be in charge of commercial agent's business at a place . . . . 221
Division 2--Appointment
319 Appointment of commercial agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
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Division 3--Recovery of commission and expenses
320 Restriction on commission payable as a percentage . . . . . . . . . . . . . . . . . 223
321 Restriction on remedy for commission or reward . . . . . . . . . . . . . . . . . . . . 224
322 Excess commission etc. to be repaid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
323 Recovery of costs of commercial agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Division 4--Code of conduct
324 Code of conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
325 Complaints about conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
PART 4--GENERAL
326 Registered office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
327 Principal licensee must notify chief executive of change in place
of business etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
328 Publication of name of licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
329 Principal licensee must keep employment register . . . . . . . . . . . . . . . . . . 228
PART 5--OFFENCES
330 Acting as commercial agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
331 Commercial agent must not act for more than 1 party . . . . . . . . . . . . . . . . 230
332 Production of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
333 Employment of ineligible persons in commercial agent's business . . . . . 231
334 Other offences about employment as commercial agents (employee) . . . 232
335 Licence not to be used improperly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
336 Unlawful entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
337 Misrepresentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
338 Impersonating commercial agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
CHAPTER 9--ACCOUNTS AND FUNDS
PART 1--TRUST ACCOUNTS
Division 1--Application of part 1
339 Pt 1 applies only to principal licensees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
Division 2--Opening trust accounts
340 Notice before opening account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
341 Account's name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
342 Notice of account's opening, closing or name change . . . . . . . . . . . . . . . . 235
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Division 3--Dealing with trust money
Subdivision 1--Payments to trust accounts
343 Application of sdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
344 Dealing with amount on receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
345 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
346 No other payments to trust account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
347 Multiple licence holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
348 Trust money not available to licensee's creditors . . . . . . . . . . . . . . . . . . . . 237
Subdivision 2--Payments from trust accounts
349 When payments may be made from trust accounts . . . . . . . . . . . . . . . . . . 238
350 Permitted drawings from trust accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Subdivision 3--Other trust account obligations
351 Accounting to clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
Division 4--Disputes about trust money
352 Application of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
353 When amount in dispute may be paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
354 Where amount must be paid if notice given . . . . . . . . . . . . . . . . . . . . . . . . 241
355 Dealing with amount if no notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
PART 2--AUDIT REQUIREMENTS
Division 1--Interpretation
356 Meaning of "auditor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Division 2--Provisions about auditors
357 Principal licensee must appoint auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
358 Application for approval as auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
359 Chief executive to consider application . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
360 When approval of person as approved auditor ends . . . . . . . . . . . . . . . . . . 244
361 Notice and evidence of auditor's appointment . . . . . . . . . . . . . . . . . . . . . . 245
362 Steps to be taken if auditor's appointment ends . . . . . . . . . . . . . . . . . . . . . 245
363 Chief executive may withdraw approval as approved auditor . . . . . . . . . . 246
364 Chief executive may make information available to supervisory bodies . 247
Division 3--Audit of trust accounts
365 Definitions for div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
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366 What trust accounts must be audited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
367 Time for audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
368 Auditors--functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
369 Auditor's advice to chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
370 Auditor may ask licensee to produce other accounts . . . . . . . . . . . . . . . . . 250
371 Audit on ceasing to be licensee or carrying on business . . . . . . . . . . . . . . 250
372 Audit reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
PART 3--FIDELITY GUARANTEE FUND
373 Fidelity guarantee fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
374 How fund may be applied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
375 Additional levy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
376 Agreements with financial institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
377 Interest on amounts in the fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
PART 4--FREEZING TRUST ACCOUNTS AND APPOINTING
RECEIVERS AND SPECIAL INVESTIGATORS
Division 1--Definitions
378 Definitions for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
Division 2--Freezing licensees' accounts
379 Chief executive may freeze licensee's accounts in particular cases . . . . 257
380 Financial institution must comply with direction . . . . . . . . . . . . . . . . . . . . 258
381 Account not to be operated unless chief executive allows . . . . . . . . . . . . 259
382 Chief executive may operate account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
383 Withdrawal of direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Division 3--Receivers
Subdivision 1--Appointment
384 When receiver may be appointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
385 Property receiver may be appointed over . . . . . . . . . . . . . . . . . . . . . . . . . . 261
386 Who may be appointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
387 How receivers are appointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
Subdivision 2--Receiver's functions and powers
388 Receivers--functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
389 Requiring information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
390 Possession of receivership property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
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391 Orders for possession of receivership property . . . . . . . . . . . . . . . . . . . . . . . 263
392 Enforcing orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
393 Improperly withdrawing, destroying or concealing property . . . . . . . . . . . . 264
394 Dealing with receivership property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
395 Obstructing receivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
Subdivision 3--Distributing receivership property
396 Notice to claimants against receivership property . . . . . . . . . . . . . . . . . . . 265
397 Access to documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
398 Deciding claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
399 Payment of claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
400 Money not dealt with by receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Subdivision 4--Receivers' remuneration and costs
401 Remuneration and costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
402 Receiver's liabilities may be paid from the fund . . . . . . . . . . . . . . . . . . . . 268
403 Recovery of remuneration, costs or liabilities . . . . . . . . . . . . . . . . . . . . . . . 268
404 Court may review remuneration, costs or liability . . . . . . . . . . . . . . . . . . . 268
Subdivision 5--Ending receivership
405 Ending receiver's appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
406 Dealing with receivership property when appointment ends . . . . . . . . . . . 270
407 Returns by receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
Subdivision 6--Miscellaneous
408 Receiver not personal representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
409 Receivership property free from execution or attachment . . . . . . . . . . . . . 271
Division 4--Special investigators
410 Appointment of special investigator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
411 Special investigators--functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
412 Special investigators--powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
413 Licensee must comply with special investigator's lawful requests . . . . . . 273
414 Reports to chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
415 Remuneration and costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
416 Special investigator's liabilities may be paid from the fund . . . . . . . . . . . 273
417 Recovery of remuneration, costs or liabilities . . . . . . . . . . . . . . . . . . . . . . . 273
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418 Court may review remuneration, costs or liabilities . . . . . . . . . . . . . . . . . . 274
419 Ending special investigator's appointment . . . . . . . . . . . . . . . . . . . . . . . . . 275
CHAPTER 10--AGENTS AND MOTOR DEALERS BOARD
PART 1--AGENTS AND MOTOR DEALERS BOARD PANEL
AND MEMBERS
420 Appointment of agents and motor dealers board panel members . . . . . . . 275
421 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
422 Conditions of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
423 Removal from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
PART 2--ESTABLISHMENT AND COMPOSITION OF AGENTS
AND MOTOR DEALERS BOARDS
424 Registrar to establish agents and motor dealers board . . . . . . . . . . . . . . . . 277
PART 3--JURISDICTION
425 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
PART 4--GENERAL
426 Minister may refer matter to agents and motor dealers board for advice . 278
427 Conflicts of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
428 Judicial notice of agents and motor dealers board and its members . . . . . 278
429 Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
430 Department to provide administrative support . . . . . . . . . . . . . . . . . . . . . . . 279
CHAPTER 11--COMPLIANCE, DISCIPLINE AND CLAIMS
AGAINST THE FUND
PART 1--FEE REVIEW PROCEEDINGS
Division 1--Preliminary
431 Definitions for pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
432 Giving objection about fees to chief executive . . . . . . . . . . . . . . . . . . . . . . 279
Division 2--Starting fee review proceedings
433 Ground for starting fee review proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 280
434 How to start proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
435 When proceeding is taken to start . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
436 Hearing date must be at least 14 days after attendance notice is given . . 282
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PART 2--DISCIPLINARY PROCEEDINGS
Division 1--Definitions
437 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Division 2--Starting disciplinary proceedings
438 Grounds for starting disciplinary proceeding . . . . . . . . . . . . . . . . . . . . . . . . 282
439 Ground for starting disciplinary proceeding against executive officer . . . 284
440 How to start proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
441 When proceeding is taken to start . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
442 Hearing date must be at least 14 days after attendance notice is given . . 285
PART 3--CLAIMS AGAINST THE FUND
Division 1--Definitions
443 Definitions for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
Division 2--Who can claim
444 Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
445 Persons who can not claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
Division 3--Making and dealing with claims
446 Claims--time limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
447 How to make a claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
448 Chief executive may investigate claims and make recommendations . . . 290
449 Chief executive to give respondent notice of claim . . . . . . . . . . . . . . . . . . 290
450 Dealing with unsettled claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
451 Matters that must be taken into account when deciding claims . . . . . . . . 291
452 Deciding claims--registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
453 Deciding claims without a hearing--agents and motor dealers board . . . 292
Division 4--Payment of claims
454 Payment of claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
455 Limits on recovery from fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
456 Notice of other recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
Division 5--Reimbursements to fund
457 Production of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
458 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
459 Recovery of overpayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
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460 Executive officers to reimburse fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
Division 6--Miscellaneous
461 Insufficiency of fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
462 Chief executive not liable for payments from fund . . . . . . . . . . . . . . . . . . . 296
PART 4--HEARINGS
Division 1--Procedure
463 Establishment of agents and motor dealers board for hearing . . . . . . . . . . 297
464 Counsel assisting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
465 Conduct of hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
466 Venues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
467 Hearings to be held in private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
468 Right of appearance and representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
469 Non-appearance of respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
470 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
471 Amendment of complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
Division 2--Attendance notice
472 Attendance notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
Division 3--Agents and motor dealers board's powers
473 Powers of agents and motor dealers board relating to taking of
evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
474 Inspection of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
475 Power to refer matter for expert assessment or opinion . . . . . . . . . . . . . . . 301
476 Power to adjourn hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
477 Contempt of agents and motor dealers board . . . . . . . . . . . . . . . . . . . . . . . 302
478 Protection of members etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
Division 4--Agents and motor dealers board's orders
479 Orders agents and motor dealers board may make on fee review
hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
480 Orders agents and motor dealers board may make on disciplinary
charge hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
481 Orders agents and motor dealers board may make on claim hearing . . . . 304
482 Form of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
483 Service of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
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484 Recovery of fine or other amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
485 Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
CHAPTER 12--ENFORCEMENT
PART 1--INSPECTORS
486 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
487 Identity cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
488 Production or display of identity cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
PART 2--INSPECTORS' POWERS
489 Entry to places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
490 Power to require documents to be produced . . . . . . . . . . . . . . . . . . . . . . . . 306
491 Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
492 Warrants--applications made other than in person . . . . . . . . . . . . . . . . . . 309
493 Inspector's powers in a place under a warrant . . . . . . . . . . . . . . . . . . . . . . . 310
494 Procedure after thing seized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
495 Power to require name and address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
496 Power to require information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
PART 3--OTHER PROVISIONS ABOUT ENFORCEMENT
497 Duties of financial institution managers . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
498 Threatening or obstructing inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
499 Powers of chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
CHAPTER 13--INJUNCTIONS AND UNDERTAKINGS
PART 1--INJUNCTIONS
500 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
501 Who may apply for injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
502 Grounds for injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
503 Court's powers for injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
504 Terms of injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
505 Undertakings as to costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
PART 2--UNDERTAKINGS
506 Chief executive may seek undertaking after contravention . . . . . . . . . . . . 317
507 Variation and withdrawal of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . 318
508 Enforcement of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
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509 Register of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
CHAPTER 14--GENERAL OFFENCES, EVIDENTIARY
MATTERS AND LEGAL PROCEEDINGS
PART 1--GENERAL OFFENCES
510 Wrongful conversion and false accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
511 Indictable and summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
512 Proceedings for an offence against s 510 . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
513 False representations about property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
514 Tampering with odometers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
515 Offence to charge fee for providing documents etc. . . . . . . . . . . . . . . . . . . 323
516 Offence to ask for, or receive, excess or improper remuneration . . . . . . . 323
517 Offence to fail to comply with court order . . . . . . . . . . . . . . . . . . . . . . . . . . 324
518 Offence to deal with trust account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
519 Offence to lend or borrow licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
520 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
521 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
522 Prohibited practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
PART 2--EVIDENTIARY MATTERS
523 Evidence of tampering by a motor dealer . . . . . . . . . . . . . . . . . . . . . . . . . . 327
524 Continuing false representation--tampered with odometer . . . . . . . . . . . . 327
525 Evidentiary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
526 Entries in licensee's books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
PART 3--PROCEEDINGS
527 Limitation on time for starting proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 329
528 Responsibility for acts or omissions of representatives . . . . . . . . . . . . . . . 329
529 Executive officers must ensure corporation complies with Act . . . . . . . . . 330
530 Power of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
531 Allegations of false or misleading representations or statements etc. . . . . 331
CHAPTER 15--APPEALS
532 Appeals against decisions of chief executive . . . . . . . . . . . . . . . . . . . . . . . 331
533 Appeals against decisions of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
534 Appeals against decisions of agents and motor dealers board . . . . . . . . . . 332
535 How to start appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
25
Agents and Motor Dealers
536 Stay of operation of decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
537 Hearing procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
538 Powers of court on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
539 Appeal to District Court on questions of law only . . . . . . . . . . . . . . . . . . . 334
CHAPTER 16--GENERAL
540 Register of ineligible persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
541 Civil remedies not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
542 Crimes (Confiscation) Act 1989 not limited . . . . . . . . . . . . . . . . . . . . . . . . 335
543 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
544 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
545 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
546 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
547 Act amended in sch 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
548 Act repealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
CHAPTER 17--TRANSITIONAL AND SAVINGS
549 Definitions for ch 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
550 Former fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
551 Subrogation of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
552 Existing pastoral house employees and registered commercial
subagents and salespersons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
553 Existing substitute licensees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
554 Existing licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
555 Existing applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
556 Existing objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
557 Existing exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
558 Existing approved financial institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
559 Existing agreements with financial institutions . . . . . . . . . . . . . . . . . . . . . . 343
560 Existing trust accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
561 Existing agreements entered into by committee . . . . . . . . . . . . . . . . . . . . . 343
562 Existing auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
563 Existing receivers appointed by committee . . . . . . . . . . . . . . . . . . . . . . . . . 344
564 Registrar's or deputy registrar's acts and decisions . . . . . . . . . . . . . . . . . . 344
565 Continuation of restriction on licensee's remedy for commission etc. . . . 345
26
Agents and Motor Dealers
566 Disciplinary action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
567 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
568 Legal proceedings by or against committee . . . . . . . . . . . . . . . . . . . . . . . . 346
569 References to repealed Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
570 References to former fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . 347
DECISIONS UNDER PROVISIONS THAT ARE SUBJECT TO
APPEAL
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . 349
CONSEQUENTIAL AMENDMENTS
SMALL CLAIMS TRIBUNALS ACT 1973 . . . . . . . . . . . . . . . . . . . . . . . . 349
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . 351
DICTIONARY
1997
A BILL
FOR
An Act to comprehensively provide for the regulation of the functions,
licensing and conduct of restricted letting agents, real estate
agents, pastoral houses, auctioneers and trainee auctioneers,
motor dealers and commercial agents and their employees, and
for other purposes
s1 28 s4
Agents and Motor Dealers
The Parliament of Queensland enacts-- 1
HAPTER 1--PRELIMINARY 2
C
PART 1--INTRODUCTION 3
title 4
Short
1. This Act may be cited as the Agents and Motor Dealers Act 1997. 5
6
Commencement
2. This Act commences on a day to be fixed by proclamation. 7
of Act 8
Application
3.(1) This Act binds all persons, including the State, and, so far as the 9
legislative power of Parliament permits, the other States. 10
(2) Nothing in this Act makes the State or any other State liable to be 11
prosecuted for an offence. 12
13
Exemption--regulation
4.(1) A regulation may exempt a person from this Act or any of its 14
provisions. 15
(2) The exemption may be given on stated conditions. 16
(3) If an exemption is given on conditions, the exemption operates only 17
if the conditions are complied with. 18
s5 29 s6
Agents and Motor Dealers
1
Exemption--auctions
5. Chapter 61 does not apply to-- 2
(a) a sale ordered by the sheriff under any writ or process issued out 3
of a Magistrates Court or any other court; or 4
(b) a sale made under a rule, order, or judgment of the Supreme 5
Court or a District Court; or 6
(c) a sale made by a person obeying an order of, or a process issued 7
by, a Magistrates Court or any other court, judge or justice for the 8
recovery of a fine, penalty, or award; or 9
(d) a sale of an animal lawfully impounded and sold under a law 10
about impounding; or 11
(e) a sale of goods distrained for rent or arrears of rent; or 12
(f) a sale by postal bids of stamps or coins. 13
officials 14
Exemption--public
6.(1) Section 3302 does not apply to a bailiff serving a writ, claim, 15
application, summons or other process. 16
(2) Chapter 11 does not apply to an accountable officer in relation to trust 17
moneys for which the accountable officer is responsible if another Act 18
makes provision for the way the accountable officer is required to deal with 19
moneys. 20
(3) In this section-- 21
"accountable officer" means an accountable officer under the Financial 22
Administration and Audit Act 1977. 23
"bailiff" means a bailiff appointed under the Supreme Court Act 1995, 24
part 12, the District Courts Act 1967 or the Magistrates Courts Act 25
1921. 26
1 Chapter 6 (Auctioneers and trainee auctioneers)
2 Section 330 (Acting as commercial agent)
s7 30 s8
Agents and Motor Dealers
institutions, trustee companies etc. 1
Exemption--financial
7.(1) Sections 149, 195, 304 and 3303 do not apply to a financial 2
institution, trustee company or friendly society. 3
(2) In this section-- 4
"friendly society" means a society within the meaning of the Friendly 5
Societies (Queensland) Code. 6
"trustee company" means a trustee company under the Trustee 7
Companies Act 1968 and includes the public trustee when the public 8
trustee is-- 9
(a) performing the functions that may be performed by a trustee 10
company; or 11
(b) exercising the powers that may be exercised by a trustee 12
company; or 13
(c) holding an office that may be held by a trustee company. 14
15
Exemption--accountants
8.(1) An accountant, other than an accountant prescribed under a 16
regulation, acting in the ordinary course of the accountant's profession is 17
exempt from the following provisions of this Act-- 18
(a) section 149, to the extent the accountant performs the functions of 19
a real estate agent-- 20
(i) in the buying, selling, exchanging, or letting of businesses or 21
interests in businesses; or 22
(ii) in the collection of rents; 23
(b) section 330, to the extent the accountant performs the functions of 24
a commercial agent collecting, or requesting payment of, debts; 25
(c) chapter 9, part 1.4 26
3 Sections 149 (Acting as real estate agent), 195 (Acting as pastoral house),
304 (Acting as motor dealer) and 330 (Acting as commercial agent)
4 Sections 149 (Acting as real estate agent), 330 (Acting as commercial agent)
and chapter 9 (Accounts and funds), part 1 (Trust accounts)
s9 31 s 10
Agents and Motor Dealers
(2) An accountant to whom subsection (1) applies is exempt from 1
chapter 9, part 1 only if the accountant complies with the Trust Accounts Act 2
1973 in relation to trust moneys. 3
(3) In this section-- 4
"accountant" means-- 5
(a) a member of the Institute of Chartered Accountants in Australia 6
who holds a current certificate of public practice issued by the 7
institute; or 8
(b) a member of the Australian Society of Certified Practising 9
Accountants who holds a current certificate of public practice 10
issued by the society; or 11
(c) a registered company auditor under the Corporations Law. 12
13
Exemption--solicitors
9.(1) A solicitor acting in the ordinary course of the solicitor's profession 14
is exempt from the following provisions of this Act-- 15
(a) section 149, to the extent the solicitor performs the functions of a 16
real estate agent in the collection of rents; 17
(b) section 330, to the extent the solicitor performs the functions of a 18
commercial agent collecting, or requesting payment of, debts; 19
(c) chapter 9, part 1.5 20
(2) A solicitor is exempt from chapter 9, part 1 only if the solicitor 21
complies with the Trust Accounts Act 1973 in relation to trust moneys. 22
houses 23
Exemption--pastoral
10.(1) A pastoral house is exempt from chapter 96 except in relation to 24
5 Sections 149 (Acting as real estate agent), 330 (Acting as commercial agent)
and chapter 9 (Accounts and funds), part 1 (Trust accounts)
6 Chapter 9 (Accounts and funds)
s 11 32 s 12
Agents and Motor Dealers
the sale of rural land or the auction of land that is not rural land. 1
(2) Subsection (1) applies subject to section 154(3).7 2
sales 3
Exemption--livestock
11. A del credere agent is exempt from chapter 9 in relation to the sale of 4
livestock if the agent and the livestock's seller agree in writing before the 5
sale that the agent guarantees payment of the livestock's purchase price to 6
the seller.8 7
ART 2--OBJECTS 8
P
9
Objects
12.(1) The primary object of this Act is to provide a regulatory system 10
for restricted letting agents, real estate agents, pastoral houses, auctioneers 11
and trainee auctioneers, motor dealers and commercial agents that achieves 12
an appropriate balance between-- 13
(a) the need to regulate for the protection of consumers; and 14
(b) the need to promote freedom of enterprise in the market place. 15
(2) The primary object is to be achieved mainly by-- 16
(a) ensuring-- 17
(i) persons who carry on business or are in charge of a 18
licensee's business at a place under the authority of an agents 19
and motor dealers licence maintain close personal 20
supervision of the way the business is carried on; and 21
(ii) only suitable persons with appropriate qualifications are 22
licensed; and 23
(b) providing-- 24
7 Section 154 (What a pastoral house licence authorises)
8 This practice is commonly referred to as `del credere'.
s 13 33 s 14
Agents and Motor Dealers
(i) protection for consumers in their dealings with licensees and 1
their employees; and 2
(ii) a legislative framework within which persons performing 3
functions for licensees may lawfully operate; and 4
(c) deregulating fees and commissions, but providing for a review of 5
excessive fees and commissions; and 6
(d) promoting administrative efficiency by providing that-- 7
(i) responsibility for licensing rests with the chief executive; and 8
(ii) responsibility for claims against the fund rests with the 9
registrar and the agents and motor dealers board; and 10
(iii) responsibility for disciplinary matters rests with the agents 11
and motor dealers board; and 12
(e) continuing the operation of the fidelity guarantee fund to provide 13
compensation for persons who suffer financial loss because of 14
their dealings with persons regulated under this Act; and 15
(f) providing increased flexibility in enforcement measures through 16
codes of conduct, injunctions and undertakings. 17
ART 3--INTERPRETATION 18
P
19
Dictionary
13. The dictionary in schedule 3 defines particular words used in this 20
Act. 21
of certain tags 22
Use
14.(1) In this Act, persons or things are sometimes given identifying 23
tags, for example, a real estate agent and a pastoral house might be given the 24
tag "selling agent". 25
(2) An identifying tag is generally used as a shorthand way of describing 26
a number of persons or things for a provision or series of provisions in the 27
s 15 34 s 15
Agents and Motor Dealers
section or division where the tag is established and used. 1
(3) An identifying tag used for a provision or series of provisions may 2
be used again (and have a different meaning) in another provision or series 3
of provisions. 4
of "beneficial interest" 5
Meaning
15.(1) For this Act, a licensee is taken to have a "beneficial interest" in 6
property in each of the following cases-- 7
Case 1 8
The purchase or sale of the property is made for the licensee or employee 9
or an associate9 of the licensee or employee. 10
Case 2 11
The licensee or employee or an associate of the licensee or employee has 12
an option to purchase the property. 13
Case 3 14
The purchase or sale of the property is made for a corporation (having 15
not more than 100 members) of which the licensee or employee or an 16
associate of the licensee or employee is a member. 17
Case 4 18
An option to purchase the property is held by a corporation (having not 19
more than 100 members) of which the licensee or employee or an associate 20
of the licensee or employee is a member. 21
Case 5 22
The purchase or sale of the property is made for a corporation of which 23
the licensee or employee or an associate of the licensee or employee is an 24
executive officer. 25
Case 6 26
An option to purchase the property is held by a corporation of which the 27
licensee or employee or an associate of the licensee or employee is an 28
executive officer. 29
9 `Associate' is a term defined in the dictionary.
s 15 35 s 15
Agents and Motor Dealers
Case 7 1
The purchase or sale of the property is made for a member of a firm or 2
partnership of which the licensee or employee or an associate of the licensee 3
or employee is also a member. 4
Case 8 5
The purchase or sale of the property is made for a person carrying on a 6
business for profit or gain if the licensee or employee or an associate of the 7
licensee or employee has, directly or indirectly, a right to participate in the 8
income or profits of the person's business or the purchase or sale of the 9
property. 10
(2) For this Act, an employee of a licensee is taken to have a "beneficial 11
interest" in property in each of the following cases-- 12
Case 1 13
The purchase or sale of the property is made for the employee or an 14
associate10 of the employee. 15
Case 2 16
The licensee or employee or an associate of the employee has an option 17
to purchase the property. 18
Case 3 19
The purchase or sale of the property is made for a corporation (having 20
not more than 100 members) of which the employee or an associate of the 21
employee is a member. 22
Case 4 23
An option to purchase the property is held by a corporation (having not 24
more than 100 members) of which the employee or an associate of the 25
employee is a member. 26
Case 5 27
The purchase or sale of the property is made for a corporation of which 28
the employee or an associate of the employee is an executive officer. 29
10 `Associate' is a term defined in the dictionary.
s 16 36 s 17
Agents and Motor Dealers
Case 6 1
An option to purchase the property is held by a corporation of which the 2
employee or an associate of the employee is an executive officer. 3
Case 7 4
The purchase or sale of the property is made for a member of a firm or 5
partnership of which the employee or an associate of the employee is also a 6
member. 7
Case 8 8
The purchase or sale of the property is made for a person carrying on a 9
business for profit or gain if the employee or an associate of the employee 10
has, directly or indirectly, a right to participate in the income or profits of the 11
person's business or the purchase or sale of the property. 12
of "in charge" 13
Meaning
16.(1) A person is "in charge" of a licensee's business at a place where 14
the licensee carries on business only if the person personally supervises, 15
manages and controls the conduct of the licensee's business at the place. 16
(2) In this section-- 17
"licensee's business" means the licensee's business carried on under the 18
authority of the licensee's licence. 19
of "motor vehicle" 20
Meaning
17.(1) "Motor vehicle" means-- 21
(a) a land vehicle designed to be propelled by anything other than 22
humans, animals, gravity or the wind; or 23
(b) a caravan. 24
(2) "Motor vehicle" does not include-- 25
(a) a train or hovercraft; or 26
(b) a vehicle used, or intended to be used, primarily in mining; or 27
(c) a trailer designed to be attached to or drawn by a motor vehicle; or 28
(d) a tractor or farm machinery; or 29
s 18 37 s 19
Agents and Motor Dealers
(e) a vehicle designed for use on a railway or tramway; or 1
(f) a fire engine. 2
of "open listing" 3
Meaning
18.(1) An "open listing" is a written agreement entered into between a 4
person ("seller") and 1 or more real estate agents or 1 or more pastoral 5
houses ("selling agents") under which the seller appoints the selling 6
agents, in accordance with the terms of the agreement, to sell stated 7
property. 8
(2) Under an open listing-- 9
(a) the seller retains a right-- 10
(i) to sell the seller's property during the term of the agreement; 11
or 12
(ii) to appoint another selling agent to sell the property; and 13
(b) only the selling agent who is the effective cause of sale is entitled 14
to remuneration; and 15
(c) the appointment of a selling agent can be ended by either the seller 16
or the selling agent at any time. 17
between "sole agency" and "exclusive agency" 18
Difference
19.(1) The only difference between a "sole agency" and an "exclusive 19
agency" is the entitlement of a selling agent to receive agreed remuneration 20
on the sale of particular property. 21
(2) Under an "exclusive agency", a selling agent is entitled, on the sale 22
of particular property and in accordance with the terms of an agreement 23
with the seller of the property, to receive an agreed remuneration, whether 24
or not the selling agent is the effective cause of the sale. 25
(3) However, if the sale were subject to a "sole agency", the selling 26
agent would not be entitled to the remuneration if the seller were the 27
effective cause of the sale. 28
29
Example--
30
Facts--S is the owner of a house that S appoints R to sell. B buys the house.
s 20 38 s 20
Agents and Motor Dealers
1
Assume for the example that in the following cases the following persons are the
2
effective cause of the sale--
3
case 1--R
4
case 2--X (another real estate agent)
5
case 3--M (S's mother)
6
case 4--S.
7
If the selling agent is appointed under an exclusive agency, R is entitled to
8
remuneration in accordance with the terms of R's agreement with S in cases 1, 2, 3
9
and 4. If the selling agent is appointed under a sole agency, R is entitled to
10
remuneration in accordance with the terms of R's agreement with S only in cases 1,
11
2 and 3.
(4) In this section-- 12
"seller", of property, means the person authorising the sale of the property. 13
"selling agent" , of property, means a real estate agent, pastoral house or 14
auctioneer appointed under a written agreement under this Act by the 15
seller to sell the property. 16
HAPTER 2--LICENSING 17
C
PART 1--CATEGORIES OF LICENCES 18
of licences 19
Categories
20. The chief executive may issue the following categories of agents and 20
motor dealers licence under this act-- 21
(a) agents and motor dealers licence (real estate); 22
(b) agents and motor dealers licence (restricted letting agent); 23
(c) agents and motor dealers licence (pastoral house); 24
(d) agents and motor dealers licence (pastoral house director); 25
(e) agents and motor dealers licence (pastoral house manager); 26
(f) agents and motor dealers licence (pastoral house auctioneer); 27
s 21 39 s 21
Agents and Motor Dealers
(g) agents and motor dealers licence (auctioneer); 1
(h) agents and motor dealers licence (trainee auctioneer); 2
(i) agents and motor dealers licence (motor dealer); 3
(j) agents and motor dealers licence (commercial agent). 4
ART 2--HOW TO OBTAIN A LICENCE 5
P
involved in obtaining a licence 6
Steps
21.(1) A person who wishes to obtain a licence must be a suitable person 7
to hold a licence under part 4.11 8
(2) The person must take the following steps to obtain a licence-- 9
Step 1 10
· advertise the person's intention to apply for the licence under 11
section 22 12
Step 2 13
· apply for the licence under section 23 by-- 14
· submitting an application showing, among other things, the 15
person is eligible to obtain the licence 16
· paying the prescribed fees and the contribution to the fund 17
· giving the chief executive the other information required 18
under section 24 and, if the person intends carrying on 19
business under the licence, section 26. 20
(3) The chief executive decides the person's application after having 21
regard, among other things, to-- 22
(a) the person's suitability to hold a licence under this Act; and 23
(b) any objections that may be made to the chief executive following 24
the advertising of the person's intention to apply for the licence; 25
11 Part 4 (Suitability of applicants and licensees)
s 22 40 s 22
Agents and Motor Dealers
and 1
(c) the person's eligibility to hold the licence. 2
PART 3--APPLICATIONS FOR LICENCES 3
must advertise intention to apply for licence 4
Applicant
22.(1) An applicant for a licence must advertise the applicant's intention 5
to apply for the licence in a newspaper that is published at least 5 days in 6
each week in the area where the applicant intends-- 7
(a) to carry on business under the licence; or 8
(b) to perform the functions of a licensee under the licence. 9
(2) The advertisement must-- 10
(a) be in the approved form; and 11
(b) state the category of licence being applied for; and 12
(c) if the applicant is a corporation--state the name of each director 13
of the corporation; and 14
(d) state the town or suburb where the applicant intends to carry on 15
business under the licence; and 16
(e) appear in the newspaper not earlier than 21 days and not later than 17
7 days before the application is filed with the chief executive. 18
(3) This section does not apply to an application for-- 19
(a) a pastoral house licence; or 20
(b) a pastoral house director's licence; or 21
(c) a pastoral house manager's licence; or 22
(d) a pastoral house auctioneer's licence; or 23
(e) a trainee auctioneer's licence. 24
s 23 41 s 24
Agents and Motor Dealers
for licence 1
Application
23.(1) An applicant for a licence must-- 2
(a) apply in the approved form; and 3
(b) state the category of licence being applied for; and 4
(c) establish the applicant's eligibility for the category of licence 5
being applied for; and 6
(d) provide any information the chief executive reasonably requires to 7
decide whether the applicant is a suitable person to hold a licence; 8
and 9
(e) be accompanied by-- 10
(i) an application fee; and 11
(ii) a licence issue fee; and 12
(iii) the contribution to the fund that may be prescribed under a 13
regulation; and 14
(iv) evidence that the applicant has advertised the applicant's 15
intention to apply for a licence under section 22; and 16
(v) for an individual applicant--2 recent colour photographs of 17
the applicant of a size prescribed under a regulation and 18
certified as photographs of the applicant in the way 19
prescribed under a regulation. 20
(2) Subsection (1)(e)(i), (ii) and (iii) does not apply if the applicant is a 21
corporation that holds another category of agents and motor dealers licence. 22
must state business address 23
Applicant
24.(1) The applicant must also state in the applicant's application-- 24
(a) if the applicant intends carrying on business under an agents and 25
motor dealers licence--the place or places in Queensland where 26
the applicant proposes to carry on business under the licence; or 27
(b) if the applicant does not intend carrying on business under the 28
licence immediately after the issue of the licence-- 29
(i) the capacity in which the person intends performing 30
s 25 42 s 25
Agents and Motor Dealers
functions under the licence and the address where the 1
functions are to be performed ("business address"); and 2
(ii) if the person intends to be a person in charge of a licensee's 3
business at a place of business--the name of the person's 4
employer and the address of the place of business where the 5
person is to be in charge (also a "business address"). 6
7
Examples of capacity in which functions may be performed--
8
· director of a licensed corporation
9
· employee of a licensee.
10
Example of business address of an employed licensee--
11
· the address of the person's employer's place of business where the person
12
generally reports for work.
(2) If the applicant intends to carry on business under the licence at more 13
than 1 place, the applicant must specify in the application the place the 14
applicant intends to be the applicant's principal place of business. 15
(3) A place of business or an address under this section must be a place 16
where a document can be served personally. 17
18
Example--
19
A post office box is not a place the applicant may use as a place of business or an
20
address for this Act.
to give information or material about application 21
Requirement
25.(1) This section applies to an applicant for a licence. 22
(2) The chief executive may, by written notice given to the applicant, 23
require the applicant to give the chief executive information or material the 24
chief executive reasonably considers is needed to consider the applicant's 25
application for the licence within a stated reasonable time. 26
(3) The applicant is taken to have withdrawn the application if, within the 27
stated reasonable time, the applicant fails to comply with a requirement 28
under subsection (2). 29
s 26 43 s 28
Agents and Motor Dealers
intending to carry on business to advise name of auditor 1
Applicant
26. If the applicant intends carrying on business under a licence and is 2
required under this Act to keep a trust account, the applicant must-- 3
(a) state in the applicant's application the name and business address 4
of an auditor appointed by the applicant to audit the trust 5
account;12 and 6
(b) give the chief executive evidence that the auditor has accepted the 7
appointment as auditor. 8
PART 4--SUITABILITY OF APPLICANTS AND 9
LICENSEES 10
of applicants and licensees--individuals 11
Suitability
27.(1) An individual is not a suitable person to hold a licence if the 12
person is-- 13
(a) an undischarged bankrupt; or 14
(b) a person who has been convicted, in Queensland or elsewhere, 15
within the preceding 5 years of a serious offence; or 16
(c) currently disqualified from holding a licence; or 17
(d) a person the chief executive decides under section 2913 is not a 18
suitable person to hold a licence. 19
(2) An individual who is not a suitable person can not hold a licence. 20
of applicants and licensees--corporations 21
Suitability
28.(1) A corporation is not a suitable person to hold a licence unless the 22
corporation is-- 23
12 See section 357 (Principal licensee must appoint auditor)
13 Section 29 (Chief executive must consider suitability of applicants and
licensees)
s 29 44 s 29
Agents and Motor Dealers
(a) a corporation within the meaning of the Corporations Law; or 1
(b) a GOC. 2
(2) Also, a corporation is not a suitable person to hold a licence if an 3
executive officer of the corporation is-- 4
(a) an undischarged bankrupt; or 5
(b) a person who has been convicted, in Queensland or elsewhere, 6
within the preceding 5 years of a serious offence; or 7
(c) a person the chief executive decides under section 29 is not a 8
suitable person to hold a licence. 9
(3) A corporation that is not a suitable person can not hold a licence. 10
executive must consider suitability of applicants and licensees 11
Chief
29.(1) The chief executive must, when deciding whether a person is a 12
suitable person to hold a licence, consider the following things-- 13
(a) the character of the person or the person's business associates; 14
(b) any objections made in relation to the person's application for the 15
licence; 16
(c) whether the person held a licence under this Act, the repealed Act 17
or a corresponding law that was suspended or cancelled; 18
(d) whether an amount has been paid from the fund because the 19
person did, or omitted to do, something that gave rise to the claim 20
against the fund; 21
(e) whether the person has been disqualified under this Act, the 22
repealed Act or a corresponding law from being a licensee or an 23
executive officer of a corporation; 24
(f) for an individual-- 25
(i) the person's criminal history; and 26
(ii) whether the person has compounded with creditors or 27
otherwise taken, or applied to take, advantage of any law 28
about bankruptcy; and 29
(iii) whether the person has been convicted of an offence against 30
s 30 45 s 30
Agents and Motor Dealers
this Act, the repealed Act or any other Act; and 1
(iv) whether the person is capable of satisfactorily performing 2
the functions of a licensee; 3
(v) whether the person's name appears in the register of 4
disqualified company directors and other officers under the 5
Corporations Law; 6
(g) for a corporation-- 7
(i) whether the corporation has been placed in receivership or 8
liquidation; and 9
(ii) whether an executive officer of the corporation has 10
compounded with creditors or otherwise taken, or applied to 11
take, advantage of any law about bankruptcy; and 12
(iii) whether an executive officer of the corporation has been 13
convicted of an offence against this Act or the repealed Act; 14
and 15
(iv) whether each executive officer of the corporation is a suitable 16
person to hold a licence; 17
(h) another thing the chief executive may consider under this Act or a 18
regulation. 19
(2) If the chief executive decides a person is not a suitable person to hold 20
a licence, the chief executive must give the person an information notice. 21
(3) In this section-- 22
"business associate", of an applicant or licensee, means a person with 23
whom the applicant or licensee carries on, or intends carrying on, 24
business under an agents and motor dealers licence. 25
trustee is a suitable person 26
Public
30. The corporation sole called The Public Trustee of Queensland is 27
taken to be a suitable person to hold a licence. 28
s 31 46 s 33
Agents and Motor Dealers
executive of department is suitable person 1
Chief
31. A chief executive of a department of government is taken to be a 2
suitable person to hold a licence. 3
about suitability of applicants and licensees 4
Investigations
32.(1) The chief executive may make investigations about the following 5
persons to help the chief executive decide whether an applicant or licensee is 6
a suitable person to hold a licence-- 7
(a) the applicant or licensee; 8
(b) if the applicant or licensee is a corporation--the corporation's 9
executive officers; 10
(c) a business associate of the applicant or licensee. 11
(2) Without limiting subsection (1), the chief executive may ask the 12
commissioner of the police service for a written report about the criminal 13
history of any of the persons. 14
(3) The commissioner must give the report to the chief executive. 15
(4) However, the report is required to contain only criminal history in the 16
commissioner's possession or to which the commissioner has access. 17
(5) In this section-- 18
"business associate", of an applicant or licensee, means a person with 19
whom the applicant or licensee carries on, or intends carrying on, 20
business under an agents and motor dealers licence. 21
history is confidential document 22
Criminal
33.(1) An officer, employee or agent of the department must not, directly 23
or indirectly, disclose to anyone else a report about a person's criminal 24
history, or information contained in the report, given under section 32. 25
Maximum penalty--100 penalty units. 26
(2) However, the person does not contravene subsection (1) if-- 27
(a) disclosure of the report or information to someone else is 28
authorised by the chief executive to the extent necessary to 29
s 34 47 s 35
Agents and Motor Dealers
perform a function under or in relation to this Act; or 1
(b) the disclosure is otherwise required or permitted by law. 2
to give chief executive information or material about 3
Requirement
suitability 4
34.(1) This section applies to an applicant for a licence or the renewal or 5
restoration of a licence. 6
(2) The chief executive may, by written notice given to the applicant, 7
require the applicant to give the chief executive information or material the 8
chief executive reasonably considers is needed to establish the applicant's 9
suitability for the licence within a stated reasonable time. 10
(3) The applicant is taken to have withdrawn the application if, within the 11
stated reasonable time, the applicant fails to comply with a requirement 12
under subsection (2). 13
ART 5--ELIGIBILITY FOR LICENCE 14
P
1--Restricted letting agent's licence 15
Division
for restricted letting agent's licence 16
Eligibility
35.(1) An individual is eligible to obtain a restricted letting agent's licence 17
for a building complex only if the individual-- 18
(a) is at least 18 years; and 19
(b) has the educational or other qualifications for a restricted letting 20
agent's licence that may be prescribed under a regulation; and 21
(c) satisfies the chief executive that the individual-- 22
(i) has body corporate approval for the individual or the person 23
by whom the individual is to be employed to carry on a 24
business of letting lots in the building complex under the 25
authority of a licence; and 26
s 35 48 s 35
Agents and Motor Dealers
(ii) resides, or will reside if issued with a licence, in the building 1
complex; and 2
(iii) has a place in the building complex that will be the 3
individual's registered office. 4
(2) The chief executive may exempt an individual from the requirement 5
mentioned in subsection (1)(b) if the chief executive is satisfied the 6
individual-- 7
(a) has a comparable qualification; or 8
(b) has, within 2 years before the day the individual's application for 9
a restricted letting agent's licence is received by the chief 10
executive, been licensed as a restricted letting agent or real estate 11
agent under this Act or the repealed Act. 12
(3) A corporation is eligible to obtain a restricted letting agent's licence 13
for a building complex only if the corporation satisfies the chief executive 14
that-- 15
(a) the corporation has body corporate approval for the corporation to 16
carry on a business of letting lots in the building complex under 17
the authority of a licence; and 18
(b) a director of the corporation is a restricted letting agent; and 19
(c) the individual who will perform the functions of a restricted 20
letting agent for the corporation-- 21
(i) is a restricted letting agent; and 22
(ii) resides, or will reside if the corporation is issued with a 23
licence, in the building complex; and 24
(iii) has a place in the building complex that will be the 25
individual's registered office. 26
(4) An individual who satisfies the chief executive that the individual will 27
be a director of a corporation that is a restricted letting agent is not required 28
to comply with subsection (1)(c)(ii) if the individual does not intend 29
performing the functions of a restricted letting agent for the building 30
complex. 31
s 36 49 s 37
Agents and Motor Dealers
Division 2--Real estate agent's licence 1
for real estate agent's licence 2
Eligibility
36.(1) An individual is eligible to obtain a real estate agent's licence only 3
if the individual-- 4
(a) is at least 18 years; and 5
(b) has the educational or other qualifications for a real estate agent's 6
licence that may be prescribed under a regulation. 7
(2) The chief executive may exempt an individual from the requirement 8
mentioned in subsection (1)(b) if the chief executive is satisfied the 9
individual-- 10
(a) has a comparable qualification; or 11
(b) has, within 2 years before the day the individual's application for 12
a real estate agent's licence is received by the chief executive, been 13
licensed as a real estate agent under this Act or the repealed Act. 14
(3) A corporation is eligible to obtain a real estate agent's licence only if 15
the corporation satisfies the chief executive that a director of the corporation 16
is a real estate agent. 17
3--Pastoral house licences 18
Division
for pastoral house licence 19
Eligibility
37. A corporation is eligible to obtain a pastoral house licence only if-- 20
(a) the corporation is-- 21
(i) a corporation within the meaning of the Corporations Law; 22
and 23
(ii) the holder of an exemption granted under the Banking Act 24
1959 (Cwlth), section 11; and 25
(iii) registered as a finance corporation under the Banking Act 26
1959 (Cwlth); and 27
(iv) an excluded corporation for the Corporations Law, chapter 7; 28
s 38 50 s 40
Agents and Motor Dealers
and 1
(b) the corporation satisfies the chief executive that a director of the 2
corporation is a pastoral house director. 3
for pastoral house director's licence 4
Eligibility
38. A person is eligible to obtain a pastoral house director's licence only 5
if the person-- 6
(a) is an individual and at least 18 years; and 7
(b) has the educational or other qualifications for a pastoral house 8
director's licence that may be prescribed under a regulation; and 9
(c) has been employed by a pastoral house for at least the period 10
prescribed under a regulation; and 11
(d) is, or satisfies the chief executive that the person, on the issue of 12
the licence, will be, a director of the pastoral house specified in the 13
person's application for licence. 14
for pastoral house manager's licence 15
Eligibility
39. A person is eligible to obtain a pastoral house manager's licence only 16
if the person-- 17
(a) is an individual and at least 18 years; and 18
(b) has the educational or other qualifications for a pastoral house 19
manager's licence that may be prescribed under a regulation; and 20
(c) has been employed by a pastoral house for at least the period 21
prescribed under a regulation. 22
for pastoral house auctioneer's licence 23
Eligibility
40. A person is eligible to obtain a pastoral house auctioneer's licence 24
only if the person-- 25
(a) is an individual and at least 18 years; and 26
(b) has the educational or other qualifications for a pastoral house 27
auctioneer's licence that may be prescribed under a regulation; 28
s 41 51 s 42
Agents and Motor Dealers
and 1
(c) has been employed by a pastoral house for at least the period 2
prescribed under a regulation. 3
Division 4--Auctioneer's and trainee auctioneer's licences 4
for auctioneer's licence 5
Eligibility
41.(1) An individual is eligible to obtain an auctioneer's licence only if 6
the individual-- 7
(a) is at least 18 years; and 8
(b) has the educational or other qualifications for an auctioneer's 9
licence that may be prescribed under a regulation. 10
(2) The chief executive may exempt an individual from the requirement 11
mentioned in subsection (1)(b) if the chief executive is satisfied the 12
individual-- 13
(a) has a comparable qualification; or 14
(b) has, within 2 years before the day the individual's application for 15
an auctioneer's licence is received by the chief executive, been 16
licensed as an auctioneer under this Act or the repealed Act. 17
(3) A corporation is eligible to obtain an auctioneer's licence only if the 18
corporation satisfies the chief executive that a director of the corporation is 19
an auctioneer. 20
for trainee auctioneer's licence 21
Eligibility
42. A person is eligible to obtain a trainee auctioneer's licence only if the 22
person-- 23
(a) is an individual and at least 18 years; and 24
(b) has the educational or other qualifications for a trainee 25
auctioneer's licence that may be prescribed under a regulation; 26
and 27
(c) satisfies the chief executive that-- 28
s 43 52 s 44
Agents and Motor Dealers
(i) the person will work only under the supervision of 1 or 1
more individuals who are auctioneers; and 2
(ii) the individual or individuals have consented to supervise the 3
person in the performance of the person's functions. 4
Division 5--Motor dealer's licence 5
for motor dealer's licence 6
Eligibility
43.(1) An individual is eligible to obtain a motor dealer's licence only if 7
the individual-- 8
(a) is at least 18 years; and 9
(b) has the educational or other qualifications for a motor dealer's 10
licence that may be prescribed under a regulation. 11
(2) The chief executive may exempt an individual from the requirement 12
mentioned in subsection (1)(b) if the chief executive is satisfied the 13
individual-- 14
(a) has a comparable qualification; or 15
(b) has, within 2 years before the day the individual's application for 16
a motor dealer's licence is received by the chief executive, been 17
licensed as a motor dealer under this Act or the repealed Act. 18
(3) A corporation is eligible to obtain a motor dealer's licence only if the 19
corporation satisfies the chief executive that a director of the corporation is a 20
motor dealer. 21
6--Commercial agent's licence 22
Division
for commercial agent's licence 23
Eligibility
44.(1) An individual is eligible to obtain a commercial agent's licence 24
only if the individual-- 25
(a) is at least 18 years; and 26
(b) has the educational or other qualifications for an commercial 27
s 45 53 s 46
Agents and Motor Dealers
agent's licence that may be prescribed under a regulation. 1
(2) The chief executive may exempt an individual from the requirement 2
mentioned in subsection (1)(b) if the chief executive is satisfied the 3
individual-- 4
(a) has a comparable qualification; or 5
(b) has, within 2 years before the day the individual's application for 6
a commercial agent's licence is received by the chief executive, 7
been licensed as a commercial agent under this Act or the 8
repealed Act. 9
(3) A corporation is eligible to obtain a commercial agent's licence only 10
if the corporation satisfies the chief executive that a director of the 11
corporation is a commercial agent. 12
Division 7--Public trustee and chief executives 13
trustee is eligible to obtain certain licences 14
Public
45.(1) The public trustee as a corporation sole ("corporate trustee") is 15
taken to be eligible to obtain the following licences-- 16
(a) real estate agent's licence; 17
(b) auctioneer's licence; 18
(c) motor dealer's licence; 19
(d) commercial agent's licence. 20
(2) If the corporate trustee is the holder of a licence under this Act, the 21
public trustee appointed, from time to time, by the Governor in Council is 22
taken to be eligible to be a licensed director of the corporate trustee. 23
executive of department is eligible to obtain certain licences 24
Chief
46. The chief executive of a department is taken to be eligible to obtain 25
the following licences-- 26
(a) real estate agent's licence; 27
(b) auctioneer's licence; 28
s 47 54 s 48
Agents and Motor Dealers
(c) motor dealer's licence; 1
(d) commercial agent's licence. 2
ART 6--OBJECTIONS 3
P
may object to issue, renewal or restoration of licences 4
Persons
47.(1) A person ("objector") may object to the issue, renewal or 5
restoration of a licence to a person by writing to the chief executive and 6
stating the grounds for the objector's objection. 7
(2) The grounds for objection are limited to the person's eligibility or 8
suitability. 9
(3) An objection under this section may be given to the chief executive at 10
any time and must be accompanied by any information that may be 11
prescribed under a regulation. 12
(4) A person is not liable, civilly, criminally or under an administrative 13
process, for anything published to the chief executive in making an 14
objection. 15
(5) Without limiting subsection (4), in a proceeding for defamation the 16
person has a defence of absolute privilege for anything published to the 17
chief executive in making the objection. 18
executive to advise applicant of objection 19
Chief
48.(1) This section applies if the chief executive is considering an 20
application for the issue, renewal or restoration of a licence made by a 21
person and the chief executive has received an objection about the person 22
under section 47. 23
(2) The chief executive must give the person a copy of the objection 24
before deciding the person's application. 25
s 49 55 s 51
Agents and Motor Dealers
may make submission about objections 1
Applicant
49. The applicant may, within 7 days after receiving the copy of the 2
objection, give the chief executive a written submission about the objection. 3
ART 7--ISSUE OF LICENCES 4
P
executive must have regard to objections and applicant's 5
Chief
submission 6
50. The chief executive must, when considering an application for the 7
issue of a licence, have regard to any objection received about the issue of 8
the licence and the applicant's submission, if any, about the objection. 9
executive may issue or refuse to issue licence 10
Chief
51.(1) The chief executive may issue or refuse to issue a licence to an 11
applicant. 12
(2) The chief executive may issue a licence to an applicant only if the 13
chief executive is satisfied that the applicant-- 14
(a) is a suitable person and-- 15
(i) if the applicant intends carrying on business in partnership or 16
in conjunction with others--each member of the partnership 17
or each person with whom the applicant intends carrying on 18
business in conjunction is a suitable person; and 19
(ii) if the applicant is a corporation--each executive officer of 20
the corporation is a suitable person; and 21
(b) is eligible to obtain a licence of the category of licence being 22
applied for. 23
(3) If the chief executive refuses to issue the licence, the chief executive 24
must give the applicant an information notice about the decision within 25
14 days after the decision is made. 26
(4) If a person's application for a licence is refused, the person may not 27
file another application for a licence-- 28
s 52 56 s 54
Agents and Motor Dealers
(a) for 3 months after the day the chief executive gives the applicant 1
the information notice under subsection (3); or 2
(b) if the person appeals the chief executive's decision and the appeal 3
is dismissed--for 3 months after the day the appeal is dismissed. 4
trustee 5
Licence--public
52.(1) The chief executive may issue a licence to the public trustee in the 6
public trustee's capacity as a corporation sole in the name `the public trustee 7
of Queensland'. 8
(2) The chief executive may issue a licence to the public trustee in the 9
public trustee's capacity as an individual and director of the corporation sole 10
in the name of the public trustee for the time being. 11
(3) An individual acting as public trustee is taken to be the holder of the 12
licence mentioned in subsection (2). 13
executive of department 14
Licence--chief
53.(1) The chief executive may issue a licence to the chief executive of a 15
department in the name `the chief executive of the (name of department)'. 16
(2) The licence is taken to be issued to the chief executive for the time 17
being of the department. 18
(3) The chief executive of a department, as licensee, is taken to represent 19
the State. 20
21
Licence--conditions
54.(1) The chief executive may issue a licence on the conditions the chief 22
executive considers necessary or desirable for the proper performance of the 23
functions authorised by the licence. 24
(2) A condition may limit or prohibit the performance of a function 25
authorised under this Act. 26
s 55 57 s 56
Agents and Motor Dealers
ART 8--RESTRICTIONS ON PERFORMING 1
P
FUNCTIONS UNDER LICENCES 2
3
Restriction--corporations
55.(1) A corporation that holds a licence may perform a function under 4
its licence only if the function may be performed by a licensed director of 5
the corporation under the director's licence. 6
7
Example--
8
D is the only licensed director of Company Pty Ltd. D holds an motor dealer's
9
licence that is subject to a condition that D deal only in motor cycles. Because of
10
that condition, Company Pty Ltd is only authorised to deal in motor cycles under its
11
licence.
12
However, if L becomes another licensed director of Company Pty Ltd and L is
13
authorised under L's licence to deal in caravans, Company Pty Ltd may also deal in
14
caravans.
(2) If the corporation performs a function it is not authorised to perform, 15
it is taken to be a person who acts as a licensee without a licence for the 16
performance of the function. 17
18
Restriction--individuals
56.(1) An individual who is an employed licensee may perform a 19
function authorised under the individual's licence only if the function may 20
also be performed by the individual's employer under the employer's 21
licence. 22
23
Example--
24
E is a licensed employee of P, a licensed motor dealer. E's licence is not subject
25
to condition. However, P's licence is subject to a condition that P deal only in motor
26
cycles. Because of that condition, E is only authorised to deal in motor cycles under
27
E's licence during E's employment with P and while P is subject to that condition.
(2) A trainee auctioneer may perform a function authorised under the 28
trainee's licence only if the function may also be performed by the 29
auctioneer under whose supervision the trainee is working. 30
(3) If the employed licensee or trainee auctioneer performs a function the 31
employed licensee or trainee is not authorised to perform because of 32
subsection (1) or (2), the employed licensee or trainee is taken to be a 33
s 57 58 s 58
Agents and Motor Dealers
person who acts as a licensee without a licence for the performance of the 1
function. 2
3
Restriction--conditions
57.(1) This section applies to a licensee who performs a function under 4
the licensee's licence that the licensee is not authorised to perform because 5
of a condition on the licensee's licence. 6
(2) The licensee is taken to be a person who acts as a licensee without a 7
licence for the performance of the function. 8
ART 9--RENEWAL AND RESTORATION OF 9
P
LICENCES 10
1--Renewal 11
Division
for renewal 12
Application
58.(1) A licensee must apply for renewal of the licensee's licence before 13
the licence expires. 14
(2) The application must be-- 15
(a) made in the approved form; and 16
(b) accompanied by-- 17
(i) an application fee; and 18
(ii) a licence renewal fee; and 19
(iii) the contribution to the fund that may be prescribed under a 20
regulation; and 21
(iv) for an individual applicant--a recent colour photograph of 22
the applicant of a size prescribed under a regulation. 23
(3) The application must also be accompanied by-- 24
(a) an audit report about all trust accounts kept by the licensee during 25
s 59 59 s 60
Agents and Motor Dealers
the relevant audit period; or 1
(b) a statutory declaration that the licensee did not operate a trust 2
account during the relevant audit period. 3
(4) The licensee must also satisfy the chief executive that the licensee has 4
actively carried out the functions authorised under the licence for a period, 5
and within the period, prescribed under a regulation. 6
(5) In this section-- 7
"audit period" see section 365.14 8
"audit report" see section 365. 9
"relevant audit period", for a licensee's licence, means the audit period 10
ending immediately before the licence's expiry date. 11
executive must have regard to objections and licensee's 12
Chief
submission 13
59. The chief executive must, when considering the licensee's application 14
for renewal of the licence, have regard to-- 15
(a) any objection received about the renewal and not previously 16
considered; and 17
(b) the licensee's submission, if any, about the objection. 18
executive may renew or refuse to renew licence 19
Chief
60.(1) The chief executive must consider the renewal application and 20
may renew or refuse to renew the licence. 21
(2) The chief executive may renew the licence only if the chief executive 22
is satisfied-- 23
(a) the licensee is a suitable person and-- 24
(i) if the licensee carries on business in partnership or in 25
conjunction with others--each member of the partnership or 26
each person with whom the licensee carries on business in 27
conjunction is a suitable person; and 28
14 Section 365 (Definitions for div 3)
s 61 60 s 62
Agents and Motor Dealers
(ii) if the licensee is a corporation--each executive officer of the 1
corporation is a suitable person; and 2
(b) the application is properly made; and 3
(c) the licensee has, as a licensee or salesperson, actively carried out 4
the functions authorised under the licence for a period, and within 5
the period, prescribed under a regulation; and 6
(d) the licensee meets the eligibility requirements, other than 7
eligibility requirements of an educational nature, for the licence. 8
(3) For subsection (2)(b), an application is properly made only if it 9
complies with section 5815 and is accompanied by the things mentioned in 10
that section. 11
(4) If the chief executive refuses the application, the chief executive must 12
give the applicant an information notice about the decision. 13
taken to be in force while application for renewal is considered 14
Licence
61. If an application is made under section 58,16 the licensee's licence is 15
taken to continue in force from the day that it would, apart from this section, 16
have expired until the licensee's application for renewal is decided under 17
section 60 or taken to have been withdrawn under section 34(3).17 18
Division 2--Restoration 19
for restoration 20
Application
62.(1) If a licensee's licence expires, the licensee may apply for 21
restoration of the licence. 22
(2) The application must be-- 23
(a) made within 3 months of the expiry; and 24
15 Section 58 (Application for renewal)
16 Section 58 (Application for renewal)
17 Section 34 (Requirement to give chief executive information or material about
suitability)
s 63 61 s 63
Agents and Motor Dealers
(b) made in the approved form; and 1
(c) accompanied by-- 2
(i) an application fee; and 3
(ii) a licence renewal fee; and 4
(iii) a licence restoration fee; and 5
(iv) the contribution to the fund that may be prescribed under a 6
regulation; and 7
(v) for an individual applicant--a recent colour photograph of 8
the applicant of a size prescribed under a regulation. 9
(3) The application must also be accompanied by-- 10
(a) an audit report about all trust accounts maintained by the licensee 11
during the relevant audit period; or 12
(b) a statutory declaration that the licensee did not operate a trust 13
account during the relevant audit period. 14
(4) The licensee must also satisfy the chief executive that the licensee has, 15
as a licensee or salesperson, actively carried out the functions authorised 16
under the licence for a period, and within the period, prescribed under a 17
regulation. 18
(5) In this section-- 19
"audit period" see section 365.18 20
"audit report" see section 365. 21
"relevant audit period", for a licensee's licence, means the audit period 22
ending immediately before the licence's expiry date. 23
executive must have regard to objections and licensee's 24
Chief
submission 25
63. The chief executive must, when considering the licensee's application 26
for restoration of the licence, have regard to any objection received about the 27
18 Section 365 (Definitions for div 3)
s 64 62 s 64
Agents and Motor Dealers
restoration of the licence and not previously considered and the licensee's 1
submission, if any, about the objection. 2
executive may restore or refuse to restore licence 3
Chief
64.(1) The chief executive must consider the restoration application and 4
may restore or refuse to restore the licence. 5
(2) The chief executive may restore the licence only if the chief executive 6
is satisfied-- 7
(a) the licensee is a suitable person; and-- 8
(i) if the licensee carries on, or intends to carry on, business in 9
partnership or in conjunction with others--each member of 10
the partnership or each person with whom the licensee 11
carries on business in conjunction is a suitable person; and 12
(ii) if the licensee is a corporation--each executive officer of the 13
corporation is a suitable person; and 14
(b) the application is properly made; and 15
(c) the licensee has, as a licensee or salesperson, actively carried out 16
the functions authorised under the licence for a period, and within 17
the period, prescribed under a regulation; and 18
(d) the licensee meets the eligibility requirements, other than 19
eligibility requirements of an educational nature, for the licence. 20
(3) For subsection (2)(b), an application is properly made only if it 21
complies with section 6219 and is accompanied by the things mentioned in 22
that section. 23
(4) If the chief executive refuses the application, the chief executive must 24
give the applicant an information notice about the decision. 25
(5) If the chief executive restores the licence, the licence is taken to have 26
been renewed on the day it would, apart from section 65, have expired. 27
19 Section 62 (Application for restoration)
s 65 63 s 66
Agents and Motor Dealers
taken to be in force while application for restoration is 1
Licence
considered 2
65. If an application is made under section 62,20 the licensee's licence is 3
taken to continue in force from the day that it would, apart from this section, 4
have expired until the licensee's application for restoration is decided under 5
section 64 or taken to have been withdrawn under section 34(3).21 6
PART 10--DEALINGS WITH LICENCES 7
1--Substitute licences 8
Division
of substitute licensee--principal licensee--individual 9
Appointment
66.(1) A principal licensee may appoint an adult person as the licensee's 10
substitute licensee for a period of not more than 30 days if-- 11
(a) the licensee will be absent from the licensee's registered office for 12
the period; and 13
(b) the adult person consents to the appointment. 14
(2) The principal licensee must ensure an appointment under 15
subsection (1) and the person's consent to the appointment are-- 16
(a) in writing and specify the period of appointment; and 17
(b) kept at the licensee's registered office; and 18
(c) made available for immediate inspection by an inspector who 19
asks to see them. 20
Maximum penalty--100 penalty units. 21
(3) A principal licensee who will be absent from the licensee's registered 22
office for a period of more than 30 days must apply to the chief executive 23
20 Section 62 (Application for restoration)
21 Section 34 (Requirement to give chief executive information or material about
suitability)
s 67 64 s 67
Agents and Motor Dealers
for the appointment of a nominated person as the licensee's substitute 1
licensee. 2
Maximum penalty--200 penalty units. 3
(4) The application must be accompanied by-- 4
(a) the nominated person's signed consent to the appointment; and 5
(b) enough information about the nominated person to enable the 6
chief executive to decide whether the person is-- 7
(i) a suitable person to hold a licence; and 8
(ii) sufficiently qualified to perform the licensee's functions 9
during the period; and 10
(c) the fee prescribed under a regulation. 11
(5) In this section-- 12
"principal licensee" means a principal licensee who is an individual and 13
includes-- 14
(a) for a licensee who is a patient within the meaning of the Mental 15
Health Act 1974--the committee of the licensee's estate or the 16
public trustee; 17
(b) for a deceased licensee--the licensee's personal representative. 18
of substitute licensee--employed licensee in charge of a 19
Appointment
licensee's business at a place 20
67.(1) This section applies if an employed licensee who is in charge of a 21
licensee's business at a place will be absent from the place for any reason, 22
other than the employed licensee's resignation or termination of 23
employment. 24
(2) If the employed licensee will be absent from the place for a short 25
period, the principal licensee who employs the employed licensee may 26
appoint an adult person as the employed licensee's substitute licensee for 27
the period if the adult person consents to the appointment. 28
(3) The principal licensee must ensure an appointment under 29
subsection (2) and the person's consent to the appointment are-- 30
(a) in writing and specify the period of appointment; and 31
s 68 65 s 68
Agents and Motor Dealers
(b) kept at the licensee's registered office; and 1
(c) made available for immediate inspection by an inspector who 2
asks to see them. 3
Maximum penalty--100 penalty units. 4
(4) If the employed licensee will be absent from the place for an extended 5
period, the principal licensee who employs the employed licensee must 6
apply to the chief executive for the appointment or the extension of the 7
appointment of the nominated person as the licensee's substitute licensee. 8
Maximum penalty--200 penalty units. 9
(5) The application must be accompanied by-- 10
(a) the nominated person's signed consent to the appointment; and 11
(b) enough information about the nominated person to enable the 12
chief executive to decide whether the person is-- 13
(i) a suitable person to hold a licence; and 14
(ii) sufficiently qualified to perform the employed licensee's 15
functions during the period; and 16
(c) the fee prescribed under a regulation. 17
(6) In this section-- 18
"extended period", of absence, means a period of absence more than 30 19
days. 20
"principal licensee" includes-- 21
(a) for a licensee who is a patient within the meaning of the Mental 22
Health Act 1974--the committee of the licensee's estate or the 23
public trustee; 24
(b) for a deceased licensee--the licensee's personal representative. 25
"short period", of absence, means a period of absence of not more than 30 26
days. 27
of substitute licensee--pastoral house manager in 28
Appointment
charge of a licensee's business at a place 29
68.(1) This section applies if a pastoral house manager who is in charge 30
s 68 66 s 68
Agents and Motor Dealers
of a pastoral house's business at a place will be absent from the place for 1
any reason, other than the manager's resignation or termination of 2
employment. 3
(2) If the pastoral house manager is absent from the place for a short 4
period, the pastoral house that employs the manager may appoint an adult 5
person as the manager's substitute licensee for the period if the adult person 6
consents to the appointment. 7
(3) The pastoral house must ensure an appointment under subsection (2) 8
and the person's consent to the appointment are-- 9
(a) in writing and specify the period of appointment; and 10
(b) kept at the pastoral house's registered office; and 11
(c) made available for immediate inspection by an inspector who 12
asks to see them. 13
Maximum penalty-- 14
(a) for an individual guilty under chapter 2 of the Criminal Code of 15
an offence or for section 52922--100 penalty units; or 16
(b) for a corporation--500 penalty units. 17
(4) If the pastoral house manager will be absent from the place for an 18
extended period, the pastoral house that employs the manager must apply to 19
the chief executive for the appointment or the extension of the appointment 20
of the nominated person as the manager's substitute licensee. 21
Maximum penalty-- 22
(a) for an individual guilty under chapter 2 of the Criminal Code of 23
an offence or for section 529--100 penalty units; or 24
(b) for a corporation--500 penalty units. 25
(5) The application must be accompanied by-- 26
(a) the nominated person's signed consent to the appointment; and 27
(b) enough information about the nominated person to enable the 28
chief executive to decide whether the person is-- 29
(i) a suitable person to hold a licence; and 30
22 Section 529 (Executive officers must ensure corporation complies with Act)
s 69 67 s 70
Agents and Motor Dealers
(ii) sufficiently qualified to perform the manager's functions 1
during the period; and 2
(c) the fee prescribed under a regulation. 3
(6) In this section-- 4
"extended period", of absence, means a period of absence more than 5
42 days. 6
"short period", of absence, means a period of absence of not more than 7
42 days. 8
executive may appoint or refuse to appoint substitute licensee 9
Chief
69.(1) The chief executive may appoint a nominated person mentioned in 10
section 66(3), 67(4) or 68(4) as a licensee's substitute licensee only if the 11
chief executive is satisfied that the person is-- 12
(a) a suitable person to hold a licence; and 13
(b) sufficiently qualified to perform the licensee's functions during 14
the period the licensee is unable to perform the functions. 15
(2) If the chief executive refuses the application, the chief executive must 16
give the licensee an information notice about the decision. 17
(3) An appointment under this section may be made subject to the 18
conditions the chief executive considers appropriate. 19
(4) The chief executive must give written notice of the appointment to the 20
licensee and the substitute licensee. 21
licensee 22
Substitute
70.(1) On appointment, a substitute licensee must act as substitute for the 23
licensee and is taken to be the licensee during the period of appointment. 24
(2) A licensee for whom a substitute has been appointed must not act 25
under the authority of the licensee's licence while the appointment of the 26
substitute licensee continues. 27
(3) The appointment of the substitute licensee ends if-- 28
(a) the period of appointment ends; or 29
s 71 68 s 71
Agents and Motor Dealers
(b) the principal licensee gives written notice to end the appointment 1
from a date stated in the notice-- 2
(i) for a substitute licensee appointed under section 66(1), 67(2) 3
or 68(2)--to the substitute licensee; or 4
(ii) for a substitute licensee appointed under section 69--to the 5
chief executive and the substitute licensee; or 6
(c) the substitute licensee gives written notice to end the appointment 7
from a date stated in the notice-- 8
(i) for a substitute licensee appointed under section 66(1), 67(2) 9
or 68(2)--to the principal licensee making the appointment; 10
or 11
(ii) for a substitute licensee appointed under section 69--to the 12
chief executive and the principal licensee making the 13
appointment; or 14
(d) the chief executive revokes the substitute licensee's appointment; 15
or 16
(e) the licensee's licence is suspended or cancelled; or 17
(f) if the licensee is a principal licensee--the licensee stops carrying 18
on business as a licensee. 19
on period of substitution 20
Limitation
71.(1) A principal licensee may not appoint a substitute licensee for 21
himself or herself for more than 12 weeks in any period of 12 months. 22
(2) A principal licensee may not appoint a substitute licensee for an 23
employed licensee for more than 12 weeks in any period of 12 months. 24
(3) A pastoral house may not appoint a substitute licensee for a pastoral 25
house manager for more than 12 weeks in any period of 12 months. 26
(4) The chief executive may not appoint a substitute licensee for any 27
licensee for more than 26 weeks in any period of 12 months. 28
s 72 69 s 73
Agents and Motor Dealers
2--General 1
Division
of licence prohibited 2
Transfer
72. A licence may not be transferred. 3
of licence conditions 4
Amendment
73.(1) The chief executive may amend the conditions of a licence-- 5
(a) on the licensee's application; or 6
(b) on the order of an agents and motor dealers board;23 or 7
(c) on the chief executive's own initiative. 8
(2) An application under subsection (1)(a) must be made in the approved 9
form and be accompanied by the application fee prescribed under a 10
regulation. 11
(3) Before making an amendment under subsection (1)(a), the chief 12
executive must be satisfied the licensee meets the eligibility requirements 13
the chief executive specifies as relevant to the amendment of the condition. 14
(4) Before making an amendment under subsection (1)(c), the chief 15
executive must-- 16
(a) give written notice to the licensee-- 17
(i) of the details of the proposed amendment; and 18
(ii) that the licensee may make written submissions to the chief 19
executive about the proposed amendment before a stated 20
day, not later than 14 days after the notice is given to the 21
licensee; and 22
(b) have regard to submissions made to the chief executive by the 23
licensee before the stated day. 24
(5) Subsection (4) does not apply if the chief executive decides that the 25
amendment must be made urgently-- 26
23 A board may deal with the conditions of a person's licence under section 480
(Orders agents and motor dealers board may make after disciplinary charge
hearing).
s 74 70 s 76
Agents and Motor Dealers
(a) to avoid potential claims against the fund; or 1
(b) to ensure compliance with this Act; or 2
(c) for another reason prescribed under a regulation. 3
(6) If the chief executive decides to amend the conditions of a licence, the 4
chief executive must give written notice of the amendment to the licensee. 5
(7) The amendment takes effect-- 6
(a) on the day the written notice of the amendment is given to the 7
licensee; or 8
(b) if a later day is stated in the notice--the stated day. 9
(8) If the chief executive refuses to make an amendment requested under 10
subsection (1)(a), the chief executive must give the applicant an information 11
notice about the decision. 12
to return licence for amendment of conditions 13
Licensee
74.(1) If the chief executive amends the conditions of a licence under 14
section 73, the chief executive may ask the licensee to produce the licence 15
for amendment within a stated period of not less than 14 days. 16
(2) The licensee must comply with a request under subsection (1). 17
Maximum penalty for subsection (2)--100 penalty units. 18
of licence 19
Surrender
75.(1) A licensee may surrender the licensee's licence by giving written 20
notice to the chief executive and returning the licence. 21
(2) A licence surrendered under this section stops having effect on the 22
day it is surrendered. 23
may be deactivated 24
Licence
76.(1) A licensee may ask the chief executive to deactivate the licensee's 25
licence. 26
(2) A request under subsection (1) must be made in the approved form 27
and be accompanied by the licensee's licence and the fee prescribed under a 28
s 77 71 s 77
Agents and Motor Dealers
regulation. 1
(3) The licence is taken to be deactivated when the request, the licence 2
and the prescribed fee are received by the chief executive under 3
subsection (2). 4
(4) A licence that is deactivated does not authorise the licensee to perform 5
a function under the authority of the licence. 6
(5) The deactivation of a licence under this section does not-- 7
(a) affect the term of the licence; or 8
(b) entitle the licensee to a refund of fees in relation to the licence for 9
the balance of the licence's term. 10
(6) A deactivated licence may be renewed under section 5824 or restored 11
under section 6225 as a deactivated licence at a reduced fee prescribed under 12
the regulations. 13
(7) A licensee may ask the chief executive to reactivate the licence. 14
(8) However, if the licence has been deactivated for 5 years or more, the 15
licence may be reactivated only if the licensee satisfies any educational or 16
other requirements prescribed under a regulation for the issue of the licence. 17
(9) A request under subsection (7) must be made in the approved form 18
and be accompanied by the fee prescribed under a regulation. 19
PART 11--IMMEDIATE SUSPENSION AND 20
CANCELLATION OF LICENCES 21
suspension 22
Immediate
77.(1) This section applies if-- 23
(a) the chief executive considers, on reasonable grounds, that an 24
irregularity or deficiency exists in a licensee's trust account; or 25
24 Section 58 (Application for renewal)
25 Section 62 (Application for restoration)
s 78 72 s 78
Agents and Motor Dealers
(b) a receiver is appointed under section 38426 over property-- 1
(i) held by a licensee; or 2
(ii) held by another person for a licensee; or 3
(iii) recoverable by a licensee. 4
(2) The chief executive may, whether or not disciplinary proceedings 5
have been started under this Act-- 6
(a) suspend the licensee's licence; or 7
(b) suspend a licence held by an employee of the licensee if the chief 8
executive considers, on reasonable grounds, the employee is 9
responsible in any way for the irregularity or deficiency in the 10
licensee's trust account. 11
(3) The licence may be suspended for the period (not more than 28 12
days), and on the conditions, the chief executive decides. 13
(4) The chief executive must give written notice of the suspension to the 14
licensee stating the grounds for the suspension. 15
cancellation 16
Immediate
78. A licensee's licence is cancelled by force of this section if the 17
licensee-- 18
(a) is convicted of a serious offence; or 19
(b) if the licensee is an individual--is an undischarged bankrupt; or 20
(c) if the licensee is a corporation--has gone into liquidation. 21
26 Section 384 (When receiver may be appointed)
s 79 73 s 80
Agents and Motor Dealers
PART 12--GENERAL PROVISIONS ABOUT 1
LICENCES 2
of licence 3
Form
79.(1) A licence must be issued in the approved form. 4
(2) However, the chief executive may approve-- 5
(a) a form of licence for office display purposes; and 6
(b) a form of licence for personal identification purposes. 7
8
Examples--
9
1. A form of licence for office display purposes may be in the form of a certificate
10
that may be framed and displayed in an office.
11
2. A form of licence for personal identification purposes may be in the form of a
12
small photo identification card suitable for carrying easily on one's person.
(3) The chief executive may also issue a form of licence for a corporation 13
endorsed with the categories of agents and motor dealers licence issued in 14
the name of the corporation. 15
(4) The licence must contain the following particulars-- 16
(a) the name of the licensee; 17
(b) the date of issue of the licence; 18
(c) the expiry date of the licence; 19
(d) for a personal identification licence--a recent photograph of the 20
licensee; 21
(e) other particulars that may be prescribed under a regulation. 22
of licence 23
Display
80. A principal licensee must display the licensee's licence at the 24
licensee's registered office in the way prescribed under a regulation. 25
Maximum penalty--100 penalty units. 26
s 81 74 s 83
Agents and Motor Dealers
of licence 1
Term
81. A licence is issued for the term, not more than 1 year, decided by the 2
chief executive. 3
licences 4
Replacement
82.(1) A licensee may apply to the chief executive for the replacement of 5
a lost, stolen, destroyed or damaged licence. 6
(2) The application must be made in the approved form and be 7
accompanied by the fee prescribed under a regulation. 8
(3) The chief executive must grant an application if the chief executive is 9
satisfied the licence has been lost, stolen or destroyed, or damaged in a way 10
to require its replacement. 11
(4) If the chief executive grants the application, the chief executive must 12
issue another licence to the applicant to replace the lost, stolen, destroyed or 13
damaged licence. 14
of licences 15
Register
83.(1) The chief executive must keep a register of licences and 16
applications for licences ("licence register"). 17
(2) The publicly available part of the licence register must contain the 18
following details-- 19
(a) for each applicant for a licence-- 20
(i) the applicant's name; and 21
(ii) if the applicant intends to carry on business under the 22
licence--the place where the applicant intends to carry on 23
business; and 24
(iii) the category of licence applied for; and 25
(iv) the date of the application; and 26
(v) the application number; 27
(b) for each licensee-- 28
(i) the licensee's name; and 29
s 83 75 s 83
Agents and Motor Dealers
(ii) the licensee's registered office; and 1
(iii) the category of the licensee's licence; and 2
(iv) the dates of issue and expiry of the licensee's current licence; 3
and 4
(v) any conditions imposed on the licence; and 5
(vi) if the licensee is a corporation--the name of the person in 6
charge of the licensee's business at the licensee's registered 7
office; and 8
(vii) if the licensee is a director of a licensed corporation--the 9
name of the licensed corporation; and 10
(viii)if the licensee is an employee of another licensee--the name 11
of the licensee's employer; and 12
(ix) the licensee's licence number; and 13
(x) particulars of any surrender, suspension, cancellation or 14
revocation of the licensee's licence. 15
(3) A person may on payment of any fee that may be prescribed under a 16
regulation-- 17
(a) request a search of, or for, an entry in the publicly available part 18
of the register at the department's head office when it is open to 19
the public; and 20
(b) obtain a copy of details of the entry. 21
(4) The register-- 22
(a) may be a mechanical, electronic or other device suitable for 23
containing information or documents; and 24
(b) may contain information or documents in a physical, electronic, 25
digital or other form. 26
(5) In this section-- 27
"contain" includes record and store. 28
s 84 76 s 85
Agents and Motor Dealers
to notify chief executive of changes in circumstances 1
Licensees
84.(1) A licensee must give written notice to the chief executive of a 2
prescribed change in the licensee's circumstances within 14 days of the 3
change. 4
Maximum penalty--100 penalty units. 5
(2) For this section-- 6
"prescribed change" means a change prescribed under a regulation. 7
HAPTER 3--RESTRICTED LETTING AGENTS 8
C
AND THEIR EMPLOYEES 9
PART 1--RESTRICTED LETTING AGENT 10
1--Restricted letting agent's licence 11
Division
a restricted letting agent's licence authorises 12
What
85.(1) A restricted letting agent's licence authorises the holder of the 13
licence ("restricted letting agent") to perform the following functions as 14
an agent for others for reward-- 15
(a) letting lots in a building complex; 16
(b) collecting rents for lots in a building complex. 17
(2) A restricted letting agent may perform the functions in the carrying 18
on of a business, either alone or with others, or as an employee of someone 19
else. 20
(3) The chief executive must, by condition of the licence, limit the 21
performance of the functions by the restricted letting agent to a stated 22
building complex. 23
(4) However, the chief executive may authorise the restricted letting agent 24
to perform the functions in not more than 1 additional building complex if 25
s 86 77 s 86
Agents and Motor Dealers
the chief executive is satisfied-- 1
(a) the building complex is on land contiguous to the land on which 2
the first building complex is situated; and 3
(b) the restricted letting agent has the approval of the body corporate 4
of the additional building complex to carry on a business of 5
letting lots in the complex. 6
(5) For subsection (4)(a), land is "contiguous" with other land only if 7
the parcels of land have a common boundary that is not separated by a 8
public road. 9
2--Responsibilities of persons in charge of licensee's business 10
Division
for employees 11
for acts and omissions of restricted letting agent 12
Responsibility
(employee) 13
86.(1) A restricted letting agent who is a principal licensee must take 14
reasonable steps to ensure each restricted letting agent (employee) employed 15
by the agent is properly supervised, acts only within the scope of the 16
employee's authority and complies with this Act. 17
(2) A restricted letting agent who is an employed licensee in charge of a 18
licensee's business at a place must take reasonable steps to ensure each 19
restricted letting agent (employee) employed at the place is properly 20
supervised, acts only within the scope of the employee's authority and 21
complies with this Act. 22
(3) A restricted letting agent who fails to meet the agent's obligations 23
under subsection (1) or (2) is liable to disciplinary action under 24
chapter 11.27 25
27 Chapter 11 (Compliance, discipline and claims against the fund)
s 87 78 s 88
Agents and Motor Dealers
ART 2--RESTRICTED LETTING AGENTS 1
P
(EMPLOYEE) 2
Division 1--Introduction 3
of "restricted letting agent (employee)" 4
Meaning
87.(1) A "restricted letting agent (employee)" is a person employed by 5
a restricted letting agent to perform any of the functions of a restricted 6
letting agent. 7
(2) To prevent any doubt, it is declared that a person employed by a 8
restricted letting agent is not a restricted letting agent (employee) if the 9
person's duties are only secretarial or clerical. 10
Division 2--Provisions about employment 11
not eligible for employment as restricted letting agents 12
Persons
(employee) 13
88.(1) Each of the following persons is not eligible to be employed as a 14
restricted letting agent (employee)-- 15
(a) a person who has not turned 18 years; 16
(b) a person who has been convicted, in Queensland or elsewhere, 17
within the preceding 5 years of a serious offence; 18
(c) a person who is subject to an order of a Magistrates Court or any 19
other court or a regulatory or disciplinary body, either within or 20
outside Queensland, declaring the person ineligible to be 21
employed as, or not to be entitled to perform the functions of, a 22
restricted letting agent (employee), real estate salesperson or 23
pastoral house salesperson; 24
(d) a person whose name is entered in the register of ineligible 25
persons as ineligible to be employed as a restricted letting agent 26
(employee), real estate salesperson or pastoral house salesperson; 27
(e) a restricted letting agent; 28
s 89 79 s 90
Agents and Motor Dealers
(f) a corporation. 1
(2) A person must not knowingly and falsely represent to someone else 2
that the person is eligible to be employed as a restricted letting agent 3
(employee). 4
Maximum penalty for subsection (2)--200 penalty units or 1 year's 5
imprisonment. 6
as restricted letting agent (employee) 7
Employment
89. A restricted letting agent must not employ someone ("proposed 8
employee") as a restricted letting agent (employee) unless the letting agent 9
has-- 10
(a) sighted a record, not more than 1 year old, of the proposed 11
employee's criminal history and is satisfied, after sighting the 12
record, that the person is not ineligible under section 88(1)(b) to 13
be employed as a restricted letting agent (employee); and 14
(b) taken reasonable action, including action to inspect the register of 15
ineligible persons,28 to satisfy himself or herself that the proposed 16
employee is not ineligible to be employed as a restricted letting 17
agent (employee). 18
Maximum penalty--200 penalty units. 19
letting agent must give employees an employment authority 20
Restricted
90.(1) Immediately after the proposed employee starts employment, the 21
restricted letting agent must give the restricted letting agent (employee) an 22
employment authority. 23
Maximum penalty--200 penalty units. 24
(2) In this section-- 25
"employment authority", for a restricted letting agent (employee), means 26
a statement clearly specifying the functions of a restricted letting agent 27
28 The chief executive is required to keep a register of ineligible persons under
section 540.
s 91 80 s 91
Agents and Motor Dealers
the employee is authorised by the letting agent to perform for the 1
letting agent during the employee's employment by the letting agent. 2
may declare person as ineligible person 3
Court
91.(1) The court may declare by order a person to be a person who is not 4
eligible to be employed as a restricted letting agent (employee). 5
(2) The court may make an order under subsection (1) only if it is 6
satisfied-- 7
(a) the person has contravened a code of conduct made under part 3, 8
division 4;29 or 9
(b) the person has been convicted of an offence against this Act and, 10
having regard to the nature of the offence, the court considers it is 11
appropriate to make the order; or 12
(c) the person has been convicted of an offence mentioned in 13
section 88(1)(b).30 14
(3) If an order is made under subsection (1), the person's name and the 15
other details that may be prescribed under a regulation must be entered in 16
the register of ineligible persons. 17
(4) The court may make an order subject to stated conditions and may 18
vary or revoke the order at any time. 19
(5) An order may be made-- 20
(a) on conviction of a person of an offence mentioned in 21
subsection (2)(b) or (c)--on the prosecutor's application or by the 22
court on its own initiative; or 23
(b) at any time--on the application of the chief executive. 24
29 Part 3 (Conduct provisions), division 4 (Code of conduct)
30 Section 88 (Persons not eligible for employment as restricted letting agents
(employee))
s 92 81 s 93
Agents and Motor Dealers
3--Functions of restricted letting agents (employee) 1
Division
of restricted letting agent (employee) 2
Functions
92. A restricted letting agent (employee) for a restricted letting agent 3
may, as the employee of the letting agent and subject to the person's 4
employment authority under section 90,31 perform the functions the letting 5
agent is authorised to perform under this Act. 6
ART 3--CONDUCT PROVISIONS 7
P
Division 1--Licensee to be in charge of a licensee's business 8
on of business under restricted letting agent's licence 9
Carrying
93.(1) An individual who carries on the business of a restricted letting 10
agent with others is not required to hold a restricted letting agent's licence or 11
real estate agent's licence if-- 12
(a) at least 1 of the persons with whom the individual carries on 13
business is a restricted letting agent or real estate agent; and 14
(b) the individual does not perform the functions of a restricted letting 15
agent; and 16
(c) the individual is a suitable person to hold a licence. 17
(2) A restricted letting agent who is an individual must reside 18
permanently in the building complex or, if the letting agent is authorised to 19
perform functions in relation to 2 building complexes, 1 of the building 20
complexes for which the letting agent is authorised to perform functions. 21
Maximum penalty--200 penalty units. 22
(3) A restricted letting agent that is a corporation must ensure that an 23
individual who will perform the functions of a restricted letting agent for the 24
31 Section 90 (Restricted letting agent must give employees an employment
authority)
s 94 82 s 94
Agents and Motor Dealers
corporation resides permanently in the building complex or, if the letting 1
agent is authorised to perform functions for 2 building complexes, 1 of the 2
building complexes for which the letting agent is authorised to perform 3
functions. 4
Maximum penalty-- 5
(a) for an individual guilty under chapter 2 of the Criminal Code of 6
an offence or for section 52932--200 penalty units; or 7
(b) for a corporation--1 000 penalty units. 8
(4) Subsections (2) and (3) do not apply to a restricted letting agent 9
whose licence is deactivated. 10
to be in charge of a restricted letting agent's business at a 11
Licensee
place 12
94.(1) A restricted letting agent who is an individual and a principal 13
licensee must be in charge of the agent's business at the agent's registered 14
office.33 15
Maximum penalty--200 penalty units. 16
(2) A restricted letting agent that is a corporation must ensure that the 17
individual in charge of the agent's business at the agent's registered office is 18
a restricted letting agent or real estate agent. 19
Maximum penalty-- 20
(a) for an individual guilty under chapter 2 of the Criminal Code of 21
an offence or for section 52934--200 penalty units; or 22
(b) for a corporation--1 000 penalty units. 23
(3) If a restricted letting agent who is a principal licensee is authorised 24
under the letting agent's licence to carry on a business of letting lots in 25
2 building complexes, and has a place of business in each building 26
complex, the restricted letting agent must ensure that another individual who 27
is a restricted letting agent or real estate agent is in charge of the agent's 28
32 Section 529 (Executive officers must ensure corporation complies with Act)
33 See section 101 (Registered office).
34 Section 529 (Executive officers must ensure corporation complies with Act)
s 95 83 s 95
Agents and Motor Dealers
business at the other place. 1
Maximum penalty--200 penalty units. 2
(4) To remove any doubt, it is declared that a restricted letting agent or 3
real estate agent can not be in charge of a restricted letting agent's business 4
at more than 1 place of business. 5
2--Appointment 6
Division
of restricted letting agent 7
Appointment
95.(1) A restricted letting agent who is asked by a person ("client") to 8
perform a function ("service") for the client must not act for the client 9
unless the client first appoints the letting agent in writing. 10
Maximum penalty--200 penalty units. 11
(2) The appointment may be for the performance of-- 12
(a) a particular service ("single appointment"); or 13
(b) a number of services over a period ("continuing 14
appointment"). 15
(3) The appointment must-- 16
(a) state the service to be performed by the letting agent and how it is 17
to be performed; and 18
(b) state-- 19
(i) in the way prescribed under a regulation--that fees, charges 20
and commission payable for the service are negotiable; and 21
(ii) if commission is payable and expressed as a percentage of 22
rent--the amount of commission expressed in dollars based 23
on the listed rental charge; and 24
(c) state-- 25
(i) the fees, charges and commission payable for the service; 26
and 27
(ii) the expenses, including advertising expenses, the letting 28
agent is authorised to incur in connection with the 29
s 96 84 s 96
Agents and Motor Dealers
performance of the service; and 1
(iii) any condition, limitation or restriction on the performance of 2
the service; and 3
(d) state when the fees, charges and commission for the service 4
become payable; and 5
(e) if a service to be performed is the letting of property and 6
commission is payable in relation to the service and expressed as 7
a percentage--state that the commission is worked out only on 8
the actual amount of rent collected; and 9
(f) state any other information that may be prescribed under a 10
regulation. 11
Maximum penalty--200 penalty units. 12
(4) A continuing appointment must state-- 13
(a) the date the appointment ends; and 14
(b) that the appointment may be revoked at any time by signed 15
writing given to the other party. 16
Maximum penalty--200 penalty units. 17
(5) Subsection (3)(b)(ii) does not apply to a continuing appointment. 18
(6) The appointment must be signed by the client and the letting agent or 19
someone authorised or apparently authorised to sign for the letting agent. 20
(7) The letting agent must give a copy of the signed appointment to the 21
client. 22
Maximum penalty for subsection (7)--200 penalty units. 23
3--Recovery of commission or reward 24
Division
on commission payable as a percentage 25
Restriction
96.(1) This section applies to a restricted letting agent who performs a 26
service of letting property for someone and claims commission worked out 27
as a percentage for the service. 28
(2) The restricted letting agent must not claim commission worked out as 29
s 97 85 s 97
Agents and Motor Dealers
a percentage of an amount more than the actual amount of rent collected. 1
Maximum penalty for subsection (2)--200 penalty units. 2
on remedy for commission or reward 3
Restriction
97.(1) A person must not sue for, or recover or retain, a commission, 4
reward or expense for the performance of a function as a restricted letting 5
agent unless-- 6
(a) at the time the function was performed-- 7
(i) the person held a restricted letting agent's licence; and 8
(ii) the person was authorised under the person's licence to 9
perform the function; and 10
(b) the person has been properly appointed under division 2 35 by the 11
person to be charged with the commission, reward or expense. 12
Maximum penalty--200 penalty units. 13
(2) A person must not sue for, or recover or retain, a commission or 14
reward for the performance of a function as a restricted letting agent that is 15
more than-- 16
(a) the amount of the commission or reward stated in the 17
appointment given under section 95(3);36 or 18
(b) if commission rates for the performance of the function have 19
been prescribed under a regulation--the lesser of the amount 20
stated in the appointment for the performance of the function and 21
the commission allowed under the regulation for the performance 22
of the function. 23
Maximum penalty--200 penalty units. 24
(3) A person must not sue for, or recover or retain, expenses for the 25
performance of a function as a restricted letting agent that are more than the 26
lesser of the following amounts-- 27
(a) the amount of the expenses stated in the appointment given under 28
35 Division 2 (Appointment)
36 Section 95 (Appointment of restricted letting agent)
s 98 86 s 99
Agents and Motor Dealers
section 95(3) and actually expended; 1
(b) if the amount of expenses that may be incurred in relation to the 2
performance of the function is limited under a regulation--the 3
amount allowed under the regulation. 4
Maximum penalty--200 penalty units. 5
commission etc. to be repaid 6
Excess
98.(1) This section applies if-- 7
(a) a person is convicted of an offence against section 96(2) or 97;37 8
and 9
(b) the court before whom the person is convicted is satisfied on the 10
balance of probabilities the person, in connection with the offence, 11
has recovered or retained from someone ("client") for whom the 12
person performed a function an amount to which the person was 13
not entitled. 14
(2) The court must order the person to pay the amount to the client. 15
(3) The order must be made whether or not any penalty is imposed for 16
the offence. 17
(4) The order may be filed in a court having jurisdiction for the recovery 18
of a debt of an equal amount and enforced as a judgment of that court. 19
4--Code of conduct 20
Division
of conduct 21
Code
99. A regulation may prescribe a code of conduct about restricted letting 22
agent practice that may include the following-- 23
(a) setting conduct standards for restricted letting agents and 24
restricted letting agents (employee); 25
(b) establishing principles for fair trading; 26
37 Section 96 (Restriction on commission payable as a percentage) or
97 (Restriction on remedy for commission or reward)
s 100 87 s 101
Agents and Motor Dealers
(c) providing for a system of complaint resolution. 1
about conduct 2
Complaints
100.(1) A person aggrieved by the conduct of a restricted letting agent or 3
restricted letting agent (employee) may complain in writing to the chief 4
executive of the conduct. 5
(2) The chief executive may investigate the complaint and, if satisfied that 6
the code of conduct has been breached, take the action about the conduct 7
allowed under this Act.38 8
(3) The investigation may take place and action may be taken even 9
though the person is no longer a restricted letting agent or restricted letting 10
agent (employee). 11
PART 4--GENERAL 12
office 13
Registered
101. A restricted letting agent's "registered office" is-- 14
(a) for a restricted letting agent who is a principal licensee-- 15
(i) the place the letting agent specifies in the letting agent's 16
application for a restricted letting agent's licence as the letting 17
agent's principal place of business; or 18
(ii) another place notified to the chief executive by the letting 19
agent in the approved form as the letting agent's principal 20
place of business; and 21
(b) for a restricted letting agent who is an employed licensee-- 22
(i) the place the letting agent specifies in the letting agent's 23
application for a restricted letting agent's licence as the letting 24
agent's business address; or 25
38 Breach of a code of conduct is a ground for starting disciplinary proceedings
under section 438 (Grounds for starting disciplinary proceeding).
s 102 88 s 103
Agents and Motor Dealers
(ii) another place notified to the chief executive by the letting 1
agent in the approved form as the letting agent's business 2
address. 3
letting agent to notify chief executive of change in place of 4
Restricted
business etc. 5
102.(1) A restricted letting agent who is a principal licensee must notify 6
the chief executive in the approved form of-- 7
(a) any change in the letting agent's registered office within 14 days 8
of the change; or 9
(b) the closure of any place where the letting agent carries on 10
business within 14 days of the closure; or 11
(c) the opening of any place where the letting agent carries on 12
business within 14 days of the opening. 13
Maximum penalty--200 penalty units. 14
(2) A restricted letting agent who is a principal licensee must notify the 15
chief executive of any change in, or revocation of, the body corporate's 16
approval to the letting agent to carry on the business of letting lots for a 17
building complex within 14 days of the change or revocation. 18
Maximum penalty--200 penalty units. 19
(3) A restricted letting agent who is an employed licensee must notify the 20
chief executive in the approved form of any change in the letting agent's 21
registered office within 14 days of the change. 22
Maximum penalty--200 penalty units. 23
of name of licensee 24
Publication
103.(1) A restricted letting agent who is a principal licensee must display 25
at each place the restricted letting agent carries on business, in the way that 26
may be prescribed under a regulation-- 27
(a) the letting agent's name; and 28
(b) if the letting agent is not the person in charge of the letting agent's 29
business at the place--the name of the restricted letting agent who 30
s 104 89 s 104
Agents and Motor Dealers
is in charge of the letting agent's business at the place; and 1
(c) the other particulars that may be prescribed under a regulation. 2
Maximum penalty--100 penalty units. 3
(2) A restricted letting agent must not publish in a newspaper or 4
elsewhere an advertisement for the purpose of the letting agent's business 5
without stating in the advertisement the particulars that may be prescribed 6
under a regulation. 7
Maximum penalty--100 penalty units. 8
licensee must keep employment register 9
Principal
104.(1) A restricted letting agent who is a principal licensee must keep a 10
register ("employment register") at each place where the letting agent 11
carries on business. 12
Maximum penalty--200 penalty units. 13
(2) The restricted letting agent must enter in the employment register-- 14
(a) the name, and the other details that may be prescribed under a 15
regulation, of each person ("employee") who is employed as a 16
restricted letting agent or restricted letting agent (employee) at the 17
place; and 18
(b) the functions the employee is authorised to perform for the letting 19
agent during the employee's employment by the letting agent.39 20
Maximum penalty--200 penalty units. 21
(3) The restricted letting agent must-- 22
(a) enter the details about each employee and, if the employee is a 23
restricted letting agent (employee), the functions the employee is 24
authorised to perform, immediately after the employee is 25
employed at the place; and 26
(b) if there is a change in an employee's details or functions--correct 27
the entry in the way prescribed under the regulations immediately 28
39 The restricted letting agent must give the employee a statement under section 90
(Restricted letting agent must give employees an employment authority) clearly
specifying the employee's functions.
s 105 90 s 107
Agents and Motor Dealers
after the change happens. 1
Maximum penalty--200 penalty units. 2
(4) The form of the register may be prescribed under a regulation. 3
ART 5--OFFENCES 4
P
as restricted letting agent 5
Acting
105. A person must not, as an agent for someone else for reward, 6
perform a function that may be done under the authority of a restricted 7
letting agent's licence unless the person-- 8
(a) holds a restricted letting agent's licence and the performance of 9
the function is authorised under the person's licence; or 10
(b) is otherwise permitted under an Act to perform the function. 11
Maximum penalty--200 penalty units or 2 years imprisonment. 12
letting agent must not act for more than 1 party 13
Restricted
106.(1) A restricted letting agent must not accept appointment to act for 14
more than 1 party to a transaction. 15
Maximum penalty--200 penalty units. 16
(2) If a restricted letting agent accepts appointment to act for more than 1 17
party to a transaction, each appointment is ineffective from the beginning. 18
19
Example of subsection (2)--
20
Accepting appointment to act for both unit owner and tenant.
of licence 21
Production
107. A restricted letting agent must, if asked by a person with whom the 22
letting agent is dealing, produce the letting agent's licence for inspection by 23
the person. 24
Maximum penalty--100 penalty units. 25
s 108 91 s 108
Agents and Motor Dealers
of ineligible persons in restricted letting agent's business 1
Employment
108.(1) A restricted letting agent must not employ-- 2
(a) as a restricted letting agent (employee)--a person the letting agent 3
knows, or ought to know, is not eligible to be employed as a 4
restricted letting agent (employee) under section 88;40 or 5
(b) in any capacity in a restricted letting agent's business--an 6
ineligible person. 7
Maximum penalty--200 penalty units or 1 year's imprisonment. 8
(2) Subsection (1)(b) does not apply if-- 9
(a) the chief executive approves the person's employment in a stated 10
capacity in writing; and 11
(b) the person is employed in that capacity and complies with any 12
conditions imposed by the chief executive in the approval. 13
(3) A person who is employed as a restricted letting agent (employee) 14
knowing that he or she is an ineligible person commits an offence. 15
Maximum penalty--200 penalty units or 1 year's imprisonment. 16
(4) A person who is employed in a capacity in a restricted letting agent's 17
business knowing that he or she is not eligible to be employed in the 18
business in that capacity commits an offence, unless-- 19
(a) the person's employment in that capacity is approved by the chief 20
executive; and 21
(b) the person complies with any conditions imposed by the chief 22
executive in the approval. 23
Maximum penalty--200 penalty units or 1 year's imprisonment. 24
(5) In this section-- 25
"ineligible person" means a person whose name is entered in the register 26
of ineligible persons. 27
40 Section 88 (Persons not eligible for employment as restricted letting agents
(employee))
s 109 92 s 110
Agents and Motor Dealers
HAPTER 4--REAL ESTATE AGENTS AND 1
C
THEIR SALESPERSONS 2
PART 1--REAL ESTATE AGENTS 3
Division 1--Real estate agent's licence 4
a real estate agent's licence authorises 5
What
109.(1) A real estate agent's licence authorises the holder of the licence 6
("real estate agent") to perform the following functions as an agent for 7
others for reward-- 8
(a) to buy, sell, exchange, or let houses, land, or estates or interests in 9
houses, land, or estates; 10
(b) to buy, sell, exchange, or let businesses or interests in businesses; 11
(c) to collect rents; 12
(d) to buy, sell or exchange livestock or an interest in livestock; 13
(e) to negotiate for the buying, selling, exchanging, or letting of 14
something mentioned in paragraph (a) or (b); 15
(f) to negotiate for the buying, selling or exchanging of something 16
mentioned in paragraph (d). 17
(2) A real estate agent may perform the functions in the carrying on of a 18
business, either alone or with others, or as an employee of someone else. 19
Division 2--Responsibilities of persons in charge of a licensee's 20
business for salespersons 21
for acts and omissions of salespersons 22
Responsibility
110.(1) A real estate agent who is a principal licensee must take 23
reasonable steps to ensure each real estate salesperson employed by the 24
agent is properly supervised, acts only within the scope of the person's 25
authority and complies with this Act. 26
s 111 93 s 112
Agents and Motor Dealers
(2) A real estate agent who is an employed licensee in charge of a 1
licensee's business at a place of business must take reasonable steps to 2
ensure each real estate salesperson employed at the place is properly 3
supervised, acts only within the scope of the person's authority and 4
complies with this Act. 5
(3) A real estate agent who fails to meet the agent's obligations under 6
subsection (1) or (2) is liable to disciplinary action under chapter 11.41 7
ART 2--REAL ESTATE SALESPERSONS 8
P
Division 1--Introduction 9
of "real estate salesperson" 10
Meaning
111.(1) A "real estate salesperson" is a person employed by a real 11
estate agent to perform any of the functions of a real estate agent. 12
(2) To prevent any doubt, it is declared that a person employed by a real 13
estate agent is not a real estate salesperson if the person's duties are only 14
secretarial or clerical. 15
Division 2--Provisions about employment 16
not eligible for employment as real estate salespersons 17
Persons
112.(1) Each of the following persons is not eligible to be employed as a 18
real estate salesperson-- 19
(a) a person who has not turned 18 years; 20
(b) a person who has been convicted, in Queensland or elsewhere, 21
within the preceding 5 years of a serious offence; 22
(c) a person who is subject to an order of a Magistrates Court or any 23
41 Chapter 11 (Compliance, discipline and claims against the fund)
s 113 94 s 114
Agents and Motor Dealers
other court or a regulatory or disciplinary body, either within or 1
outside Queensland, declaring the person ineligible to be 2
employed as, or not to be entitled to perform the functions of, a 3
real estate salesperson, restricted letting agent or pastoral house 4
salesperson (employee); 5
(d) a person whose name is entered in the register of ineligible 6
persons as ineligible to be employed as a real estate salesperson, 7
restricted letting agent or pastoral house salesperson (employee); 8
(e) a restricted letting agent; 9
(f) a corporation. 10
(2) A person must not knowingly and falsely represent to someone else 11
that the person is eligible to be employed as a real estate salesperson. 12
Maximum penalty for subsection (2)--200 penalty units or 1 year's 13
imprisonment. 14
as real estate salespersons 15
Employment
113. A real estate agent must not employ someone ("proposed 16
employee") as a real estate salesperson unless the agent has-- 17
(a) sighted a record, not more than 1 year old, of the proposed 18
employee's criminal history and is satisfied, after sighting the 19
record, that the person is not ineligible under section 112(1)(b) to 20
be employed as a real estate salesperson; and 21
(b) taken reasonable action, including action to inspect the register of 22
ineligible persons,42 to satisfy himself or herself that the proposed 23
employee is not ineligible to be employed as a real estate 24
salesperson. 25
Maximum penalty--200 penalty units. 26
estate agent must give salespersons "employment authority" 27
Real
114.(1) Immediately after the real estate salesperson starts employment, 28
42 The chief executive is required to keep a register of ineligible persons under
section 540.
s 115 95 s 115
Agents and Motor Dealers
the real estate agent must give the salesperson an employment authority. 1
Maximum penalty--200 penalty units. 2
(2) In this section-- 3
"employment authority", for a real estate salesperson, means a statement 4
clearly specifying the functions of a real estate agent the salesperson is 5
authorised by the agent to perform for the agent during the 6
salesperson's employment by the agent. 7
may declare person as ineligible person 8
Court
115.(1) A court may declare by order a person to be a person who is not 9
eligible to be employed as a real estate salesperson. 10
(2) The court may make an order under subsection (1) only if it is 11
satisfied-- 12
(a) the person has contravened a code of conduct made under part 3, 13
division 8;43 or 14
(b) the person has been convicted of an offence against this Act and, 15
having regard to the nature of the offence, the court considers it is 16
appropriate to declare the person to be a person who is not eligible 17
to be employed as a real estate salesperson; or 18
(c) the person has been convicted of an offence mentioned in 19
section 112(1)(b).44 20
(3) If an order is made under subsection (1), the person's name and the 21
other details that may be prescribed under a regulation must be entered in 22
the register of ineligible persons. 23
(4) The court may make an order subject to stated conditions and may 24
vary or revoke the order at any time. 25
(5) An order may be made-- 26
(a) on conviction of a person of an offence mentioned in 27
subsection (2)(b) or (c)--on the prosecutor's application or by the 28
43 Part 3 (Conduct provisions), division 8 (Code of conduct)
44 Section 112 (Persons not eligible for employment as real estate salespersons)
s 116 96 s 118
Agents and Motor Dealers
court on its own initiative; or 1
(b) at any time--on the application of the chief executive. 2
3--Functions of real estate salespersons 3
Division
of real estate salesperson 4
Functions
116. A real estate salesperson for a real estate agent may, as the 5
employee of the real estate agent and subject to the person's employment 6
authority under section 114,45 perform the functions the real estate agent is 7
authorised to perform under this Act. 8
ART 3--CONDUCT PROVISIONS 9
P
Division 1--Licensee to be in charge of a licensee's business 10
on of business under real estate agent's licence 11
Carrying
117. An individual who carries on the business of a real estate agent with 12
others is not required to hold a real estate agent's licence if-- 13
(a) at least 1 of the persons with whom the individual carries on 14
business is a real estate agent; and 15
(b) the individual does not perform the functions of a real estate 16
agent; and 17
(c) the individual is a suitable person to hold a licence. 18
to be in charge of a real estate agent's business at a place 19
Licensee
118.(1) A real estate agent who is an individual and a principal licensee 20
must-- 21
45 Section 114 (Real estate agent must give salespersons "employment authority")
s 119 97 s 119
Agents and Motor Dealers
(a) be in charge of agent's business at the agent's registered office;46 1
and 2
(b) if the agent has more than 1 place of business--ensure that at 3
each other place of business a real estate agent who is an 4
individual is in charge of the agent's business at the place. 5
Maximum penalty--200 penalty units. 6
(2) A real estate agent that is a corporation and a principal licensee 7
("corporate agent") must ensure that-- 8
(a) the individual in charge of the corporate agent's business at its 9
registered office is a real estate agent; and 10
(b) if the corporate agent has more than 1 place of business--at each 11
other place of business an individual who is a real estate agent is 12
in charge of the corporate agent's business at the place. 13
Maximum penalty-- 14
(a) for an individual guilty under chapter 2 of the Criminal Code of 15
an offence or for section 52947--200 penalty units; or 16
(b) for a corporation--1 000 penalty units. 17
(3) To prevent any doubt, it is declared that a real estate agent can not be 18
in charge of a real estate agent's business at more than 1 place. 19
2--Appointment 20
Division
of real estate agent--general 21
Appointment
119.(1) A real estate agent who is asked by a person ("client") to 22
perform a function ("service") for the client must not act for the client 23
unless the client first appoints the agent in writing. 24
Maximum penalty--200 penalty units. 25
(2) The appointment may be for the performance of-- 26
46 See section 145 (Registered office).
47 Section 529 (Executive officers must ensure corporation complies with Act)
s 119 98 s 119
Agents and Motor Dealers
(a) a particular service ("single appointment"); or 1
(b) a number of services over a period ("continuing 2
appointment"). 3
(3) The appointment must-- 4
(a) state the service to be performed by the real estate agent and how 5
it is to be performed; and 6
(b) state-- 7
(i) in the way prescribed under a regulation--that fees, charges 8
and commission payable for the service are negotiable; and 9
(ii) if commission is payable and expressed as a percentage of 10
sale price or rent--the amount of commission expressed in 11
dollars based on the listed sale price or rental charge or, if the 12
sale is to be by way of auction, the reserve price; and 13
(c) state-- 14
(i) the fees, charges and commission payable for the service; 15
and 16
(ii) the expenses, including advertising and marketing expenses, 17
the agent is authorised to incur in connection with-- 18
(A) for a single appointment--the performance of the 19
service; or 20
(B) for a continuing appointment--the performance of each 21
service or category of service; and 22
(iii) any condition, limitation or restriction on the performance of 23
the service; and 24
(d) state when the fees, charges and commission for the service 25
become payable; and 26
(e) if a service to be performed is the sale or letting of property and 27
commission is payable in relation to the service and expressed as 28
a percentage--state that the commission is worked out only on 29
the actual sale price of the property or the amount of rent 30
collected; and 31
(f) if the appointment is for a sole or exclusive agency--state the date 32
s 120 99 s 120
Agents and Motor Dealers
the appointment ends; and 1
(g) state any other information that may be prescribed under a 2
regulation. 3
Maximum penalty--200 penalty units. 4
(4) A continuing appointment must state-- 5
(a) the date the appointment ends; and 6
(b) the appointment may be revoked at any time by signed writing 7
given to the other party. 8
Maximum penalty--200 penalty units. 9
(5) Subsection (3)(b)(ii) does not apply to a continuing appointment. 10
(6) The appointment must be signed by the client and the real estate agent 11
or someone authorised or apparently authorised to sign for the agent. 12
(7) The real estate agent must give a copy of the signed appointment to 13
the client. 14
Maximum penalty--200 penalty units. 15
(8) If an appointment under this section authorises a sale by auction, an 16
appointment under section 20748 is not required. 17
(9) This section does not apply if the service to be performed is the sale 18
of livestock. 19
of real estate agent--sole and exclusive agencies 20
Appointment
120.(1) If the appointment is for a sole or exclusive agency, before the 21
appointment is signed, the real estate agent must give the client a notice in 22
the approved form stating the following-- 23
(a) the proposed term of the appointment; 24
(b) the term is negotiable up to a maximum term of 90 days; 25
(c) whether the appointment is under a sole agency or an exclusive 26
agency; 27
48 Section 207 (Appointment of auctioneer--general)
s 121 100 s 122
Agents and Motor Dealers
(d) the difference between sole agency and exclusive agency;49 1
(e) the consequences for the client if the property is sold by someone 2
other than the agent during the term of the sole or exclusive 3
agency. 4
Maximum penalty--200 penalty units. 5
(2) The appointment may include provision that, at the end of the term of 6
a sole or exclusive agency, the appointment of the agent continues under an 7
open listing50 that may be ended at any time by either party. 8
(3) The notice is not required to state that the term of appointment is 9
negotiable up to a maximum term of 90 days if the notice relates to property 10
prescribed under a regulation for this subsection. 11
(4) The agent's requirement to give the notice under this section is in 12
addition to the agent's requirement to obtain an appointment under 13
section 119. 14
estate agent may be reappointed 15
Real
121.(1) A real estate agent may be reappointed for a sole or exclusive 16
agency for 1 or more further terms of not more than 90 days. 17
(2) The reappointment must not be made until 14 days or a shorter 18
period before the term of the sole or exclusive agency ends. 19
Maximum penalty for subsection (2)--200 penalty units. 20
of appointments 21
Avoidance
122.(1) The appointment of a real estate agent is ineffective from the 22
beginning if-- 23
(a) the notice mentioned in section 12051 is not given before the 24
appointment is signed; or 25
(b) the term of an appointment for a sole or exclusive agency is more 26
49 See section 19 (Difference between "sole agency" and "exclusive agency")
50 See section 18 (Meaning of "open listing")
51 Section 120 (Appointment of real estate agent--sole and exclusive agencies)
s 123 101 s 124
Agents and Motor Dealers
than 90 days. 1
(2) Subsection (1)(b) does not apply to an appointment for property 2
prescribed for section 120(3). 3
(3) The reappointment of an agent for a further term of sole or exclusive 4
agency is ineffective if it is made contrary to section 121(2). 5
3--Recovery of commission or reward 6
Division
on commission payable as a percentage 7
Restriction
123.(1) This section applies to a real estate agent who performs a service 8
of selling or letting property for someone and claims commission worked 9
out as a percentage for the service. 10
(2) The real estate agent must not claim commission worked out as a 11
percentage of an amount more than the actual sale price of the property or 12
the amount of rent collected. 13
Maximum penalty for subsection (2)--200 penalty units. 14
on remedy for commission or reward 15
Restriction
124.(1) A person must not sue for, or recover or retain, a commission, 16
reward or expense for the performance of a function as a real estate agent 17
unless-- 18
(a) at the time the function was performed-- 19
(i) the person held a real estate agent's licence; and 20
(ii) the person was authorised under the person's licence to 21
perform the function; and 22
(b) the person has been properly appointed under division 2 by the 23
person to be charged with the commission, reward or expense. 24
Maximum penalty--200 penalty units. 25
(2) A person must not sue for, or recover or retain, a commission or 26
reward for the performance of a function as a real estate agent that is more 27
than-- 28
s 125 102 s 125
Agents and Motor Dealers
(a) the amount of the commission or reward stated in the 1
appointment given under section 119(3);52 or 2
(b) if commission rates for the performance of the function have 3
been prescribed under a regulation--the lesser of the amount 4
stated in the appointment for the performance of the function and 5
the commission allowed under the regulation for the performance 6
of the function. 7
Maximum penalty--200 penalty units. 8
(3) A person must not sue for, or recover or retain, expenses for the 9
performance of a function as a real estate agent that are more than the lesser 10
of the following amounts-- 11
(a) the amount of the expenses stated in the appointment given under 12
section 119(3) and actually expended; 13
(b) if the amount of expenses that may be incurred in relation to the 14
performance of the function is limited under a regulation--the 15
amount allowed under the regulation. 16
Maximum penalty--200 penalty units. 17
commission etc. to be repaid 18
Excess
125.(1) This section applies if-- 19
(a) a person is convicted of an offence against section 123(2) 20
or 124;53 and 21
(b) the court before whom the person is convicted is satisfied on the 22
balance of probabilities the person, in connection with the offence, 23
has recovered or retained from someone ("client") for whom the 24
person performed a function an amount to which the person was 25
not entitled. 26
(2) The court must order the person to pay the amount to the client. 27
(3) The order must be made whether or not any penalty is imposed on 28
52 Section 119 (Appointment of real estate agent--general)
53 Section 123 (Restriction on commission payable as a percentage) or
124 (Restriction on remedy for commission or reward)
s 126 103 s 127
Agents and Motor Dealers
the conviction. 1
(4) The order may be filed in a court having jurisdiction for the recovery 2
of a debt of an equal amount and enforced as a judgment of that court. 3
4--Interests in property 4
Division
for div 4 5
Definition
126. In this division-- 6
"obtain" includes being in any way concerned in obtaining. 7
interest--options 8
Beneficial
127.(1) This section applies to property placed by a person ("client") 9
with a real estate agent for sale. 10
(2) The real estate agent commits an offence if any of the following 11
persons obtain from the client an option to purchase the property in which 12
the person has a beneficial interest-- 13
(a) the real estate agent; 14
(b) a real estate salesperson employed by the agent. 15
Maximum penalty--200 penalty units or 3 years imprisonment. 16
(3) A real estate salesperson employed by the real estate agent commits 17
an offence if the salesperson obtains from the client an option to purchase 18
the property in which the salesperson has a beneficial interest. 19
Maximum penalty--200 penalty units or 3 years imprisonment. 20
(4) The real estate agent must not sell the property if any of the following 21
persons obtain a beneficial interest in an option to purchase the property-- 22
(a) the agent; 23
(b) a real estate salesperson employed by the agent. 24
Maximum penalty--200 penalty units or 3 years imprisonment. 25
(5) It is a defence to a prosecution under subsection (2)(b) or (4)(b) for 26
the real estate agent to show that the agent was not aware the salesperson 27
s 128 104 s 128
Agents and Motor Dealers
obtained the beneficial interest and took reasonable precautions and 1
exercised proper diligence to prevent the contravention. 2
interest--other than options 3
Beneficial
128.(1) This section applies to property placed by a person ("client") 4
with a real estate agent for sale, but does not apply if section 127 applies. 5
(2) The real estate agent commits an offence if any of the following 6
persons obtain a beneficial interest in the property-- 7
(a) the real estate agent; 8
(b) a real estate salesperson employed by the agent. 9
Maximum penalty--200 penalty units or 3 years imprisonment. 10
(3) A real estate salesperson employed by the real estate agent commits 11
an offence if the salesperson obtains a beneficial interest in the property. 12
Maximum penalty--200 penalty units or 3 years imprisonment. 13
(4) A person does not contravene subsection (2) or (3) if-- 14
(a) the real estate agent or real estate salesperson-- 15
(i) obtains the client's written acknowledgment that the client-- 16
(A) is aware that the agent or salesperson is interested in 17
obtaining a beneficial interest in the property; and 18
(B) consents to the agent or salesperson obtaining the 19
interest; and 20
(ii) acts fairly and honestly in relation to the sale; and 21
(b) for the sale of property--the real estate agent and the real estate 22
salesperson do not accept commission or other reward for the 23
sale; and 24
(c) the client is in substantially as good a position as the client would 25
be if the property were sold at fair market value. 26
(5) It is a defence to a prosecution under subsection (2)(b) for the real 27
estate agent to show that the agent was not aware the salesperson obtained 28
the beneficial interest and took reasonable precautions and exercised proper 29
diligence to prevent the contravention. 30
s 129 105 s 129
Agents and Motor Dealers
orders court may make 1
Additional
129.(1) If a court convicts a person of an offence against section 127(2), 2
(3) or (4),54 the court may-- 3
(a) by order, declare that the option is ineffective; or 4
(b) if the property is sold--order the convicted person to pay to the 5
client an amount the court decides is appropriate having regard to 6
the profits resulting from the person obtaining the option. 7
(2) If a court convicts a person of an offence against section 128(2) 8
or (3), the court may-- 9
(a) by order-- 10
(i) direct that the property be retransferred to the client at the 11
convicted person's expense; and 12
(ii) direct the convicted person to pay to the client the amount of 13
the commission or other reward for the sale; or 14
(b) if, for any reason the court considers just, the property can not be 15
retransferred--by order, direct the convicted person to pay to the 16
client-- 17
(i) an amount the court decides is appropriate having regard to 18
the profits resulting from the person obtaining a beneficial 19
interest in the property; and 20
(ii) the amount of the commission or other reward for the sale. 21
(3) For the purposes of making an order under subsection (1)(b) 22
or (2)(b), the court may-- 23
(a) order that the property be valued by a person appointed by the 24
court; and 25
(b) make any order necessary to allow the valuation to be undertaken. 26
(4) If the court makes or refuses to make an order under subsection (1), 27
(2) or (3), an appeal against the order or refusal may be made to a District 28
Court in the same way a penalty imposed may be appealed. 29
(5) The court may also make the order for costs it considers appropriate. 30
54 Section 127 (Beneficial interest--options)
s 130 106 s 132
Agents and Motor Dealers
(6) An order may be made under this section on a conviction, whether or 1
not a penalty is imposed. 2
of s 128 3
Non-application
130. Section 128 does not apply in relation to livestock sales if the real 4
estate agent obtains the client's written acknowledgment that the client-- 5
(a) is aware that the real estate agent or a real estate salesperson is 6
interested in obtaining a beneficial interest in the livestock; and 7
(b) consents to the real estate agent or a real estate salesperson 8
obtaining the interest. 9
5--Representations about finance 10
Division
for div 5 11
Definition
131. In this division-- 12
"contract", in relation to the sale of land, includes any document that 13
legally binds, or is intended to legally bind, a buyer in relation to the 14
sale. 15
about availability of finance 16
Representations
132.(1) A real estate agent who is a principal licensee must ensure a 17
proposed buyer of land is given a written statement under this section if the 18
real estate agent or a real estate salesperson employed by the agent has made 19
a representation to the proposed buyer about finance for the purchase of the 20
land. 21
Maximum penalty--200 penalty units or 2 years imprisonment. 22
(2) The statement must be given to the proposed buyer before the buyer 23
signs any contract in relation to the land. 24
(3) The statement must include the following details-- 25
(a) the land, clearly identified, to which the statement relates; 26
(b) the names and addresses of the seller of the land and the proposed 27
s 133 107 s 133
Agents and Motor Dealers
buyer; 1
(c) whether a representation to the proposed buyer about finance has 2
been made by the real estate agent or a real estate salesperson 3
employed by the agent; 4
(d) a clear statement of the representation, and the particulars of the 5
representation, made to the proposed buyer; 6
(e) the date on which the statement is given; 7
(f) any other thing that may be prescribed under a regulation. 8
(4) The statement must be signed by the real estate agent or someone 9
authorised to sign for the agent and the proposed buyer. 10
(5) The real estate agent must ensure a copy of the signed statement is-- 11
(a) kept at the real estate agent's registered office; and 12
(b) made available for immediate inspection by an inspector who 13
asks to see it. 14
Maximum penalty for subsection (5)--200 penalty units or 2 years 15
imprisonment. 16
rights after misrepresentation about availability of finance 17
Buyer's
133.(1) A buyer of land, by written notice ("avoidance notice") given to 18
the seller of the land or the real estate agent, may avoid a contract for the 19
sale of the land if-- 20
(a) the real estate agent or a real estate salesperson employed by the 21
real estate agent has made a representation about the availability of 22
finance for the purchase of the land to the buyer; and 23
(b) the real estate agent does not ensure that finance is made available 24
in accordance with the representation; and 25
(c) the buyer is materially affected by the real estate agent's failure. 26
(2) The avoidance notice must be given to the seller or real estate agent at 27
or before the time the contract is to be completed or immediately after that 28
time. 29
(3) The seller and the real estate agent are liable at law, jointly and 30
severally, for the repayment to the buyer of all amounts paid by the buyer 31
s 133 108 s 133
Agents and Motor Dealers
under the contract if the contract is avoided-- 1
(a) by the buyer under subsection (1); or 2
(b) by the seller because the buyer has failed to pay in terms of the 3
contract the purchase price or part of the purchase price because 4
of a representation mentioned in subsection (1). 5
(4) A real estate agent who is liable at law under subsection (3) for the 6
repayment to the buyer of an amount paid by the buyer under the contract 7
must repay the amount within 14 days after becoming liable. 8
Maximum penalty--200 penalty units. 9
(5) The buyer may recover an amount mentioned in subsection (3) as a 10
debt in a court of competent jurisdiction. 11
(6) Judgment recovered against either person liable under subsection (3) 12
for an amount repayable under that subsection does not bar an action against 13
the other person. 14
(7) However, if separate actions are brought-- 15
(a) the amounts recoverable under the judgments given in the actions 16
must not be more, taken together, than the amount repayable to 17
the buyer; and 18
(b) in the later of the 2 actions, the plaintiff is not entitled to costs 19
unless the court decides there were reasonable grounds for 20
bringing the action. 21
(8) If a representation is made by the real estate agent or a real estate 22
salesperson employed by the real estate agent without the seller's 23
knowledge, connivance or consent, the seller may recover from the real 24
estate agent-- 25
(a) an amount paid under the contract and not received by the seller 26
that the seller has repaid to the buyer; and 27
(b) an amount for damages suffered by the seller because of the 28
buyer's avoidance of the contract. 29
(9) Subject to subsection (1), this section does not-- 30
(a) make the contract illegal or ineffective; or 31
(b) empower a party to avoid the contract. 32
s 134 109 s 136
Agents and Motor Dealers
of ss 132 and 133 1
Application
134.(1) Sections 132 and 13355 do not apply to a representation-- 2
(a) that the seller will transfer the land to the proposed buyer on the 3
condition the buyer executes a mortgage in the seller's favour to 4
secure an amount payable under a contract of sale for the land; or 5
(b) that the terms of the sale will be or will include a provision that 6
the purchase price or part of the purchase price is or may be 7
payable by instalments. 8
(2) An arrangement is ineffective to the extent that it purports to exclude, 9
change or restrict the application of section 132 or 133 or this section. 10
to punishment under s 132 or 133 additional to other 11
Liability
liabilities at law 12
135.(1) Liability to punishment under section 132 or 13356 is in addition 13
to other liabilities at law imposed under section 133. 14
(2) For subsection (1), it is immaterial whether a real estate agent has not 15
been prosecuted or, if prosecuted, has or has not been convicted for an 16
offence against section 132 or 133. 17
Division 6--Lands not lawfully useable for residential purposes 18
for div 6 19
Definition
136. In this division-- 20
"vacant land" means land on which there are no structural improvements, 21
other than fencing. 22
55 Sections 132 (Representations about availability of finance) and 133 (Buyer's
rights after misrepresentation about availability of finance)
56 Section 132 (Representations about availability of finance) or 133 (Buyer's
rights after misrepresentation about availability of finance)
s 137 110 s 138
Agents and Motor Dealers
of div 6 1
Application
137. This division applies to a sale or proposed sale of vacant land if-- 2
(a) the sale is by a real estate agent either as agent for another or as 3
principal; and 4
(b) the land is within-- 5
(i) the City of Brisbane area; or 6
(ii) a local government area or joint local government area under 7
the Local Government Act 1993; and 8
(c) the land can not, as at the day of sale, be lawfully used for 9
residential purposes. 10
to be given about vacant land 11
Notice
138.(1) A real estate agent must give to a proposed buyer a written 12
statement under this section. 13
Maximum penalty--200 penalty units or 2 years imprisonment. 14
(2) The real estate agent must give the statement to the proposed buyer 15
before the buyer signs any contract in relation to the sale. 16
(3) The statement must include the following details-- 17
(a) the land, clearly identified, to which the statement relates; 18
(b) the names and addresses of the seller of the land and the proposed 19
buyer; 20
(c) a clear statement that the use of the land for residential purposes is 21
unlawful; 22
(d) a clear statement that if the buyer erects on the land a dwelling 23
house or otherwise uses the land for residential purposes contrary 24
to law-- 25
(i) the buyer may commit an offence; and 26
(ii) a named local government may be lawfully empowered to 27
demolish the dwelling house or other residential structure; 28
and 29
(e) the date on which the statement is given; 30
s 139 111 s 139
Agents and Motor Dealers
(f) any other thing that may be prescribed under a regulation. 1
(4) The statement must be signed by the real estate agent and the 2
proposed buyer. 3
(5) The real estate agent must-- 4
(a) keep a copy of the signed statement at the real estate agent's 5
registered office; and 6
(b) make it available for immediate inspection by an inspector who 7
asks to see it. 8
Maximum penalty--200 penalty units or 2 years imprisonment. 9
(6) An arrangement is ineffective to the extent that it purports to exclude, 10
change or restrict the application of this section. 11
rights if notice materially defective or not given 12
Buyer's
139.(1) A buyer of land, by written notice ("avoidance notice") given to 13
the seller of the land or the real estate agent, may avoid a contract for the 14
sale of the land if-- 15
(a) the buyer has not been given the notice under section 138; or 16
(b) the notice has been given to the buyer, but the notice is defective 17
in a material way. 18
(2) The avoidance notice must be given to the seller or real estate agent 19
within 6 months after the day the buyer entered into the contract. 20
(3) The seller and the real estate agent are liable at law, jointly and 21
severally, for the repayment to the buyer of all amounts paid by the buyer 22
under the contract if the contract is avoided by the buyer under 23
subsection (1). 24
(4) A real estate agent who is liable at law under subsection (3) for the 25
repayment to the buyer of an amount paid by the buyer under the contract 26
must repay the amount within 14 days after becoming liable. 27
Maximum penalty for subsection (4)--200 penalty units. 28
(5) The buyer may recover an amount mentioned in subsection (3) as a 29
debt in a court of competent jurisdiction. 30
(6) Judgment recovered against either person liable under subsection (3) 31
s 140 112 s 140
Agents and Motor Dealers
for an amount repayable under that subsection does not bar an action against 1
the other person. 2
(7) However, if separate actions are brought-- 3
(a) the amounts recoverable under the judgments given in the actions 4
must not be more, taken together, than the amount repayable to 5
the buyer; and 6
(b) in the later of the 2 actions, the plaintiff is not entitled to costs 7
unless the court decides there were reasonable grounds for 8
bringing the action. 9
(8) If the buyer avoids the contract under this section after the contract is 10
completed, the buyer must, after repayment of all amounts recoverable by 11
the buyer under subsection (3)-- 12
(a) sign the documents presented to the buyer necessary to reconvey 13
title to the land to the seller or the seller's nominee; and 14
(b) deliver to the seller or the seller's nominee any instrument of title 15
in the buyer's possession or under the buyer's control. 16
(9) The buyer is not liable for any costs associated with a reconveyance 17
under subsection (8). 18
to punishment under s 138 or 139 additional to other 19
Liability
liabilities at law 20
140.(1) Liability to punishment under section 138 or 13957 is in addition 21
to other liabilities at law imposed under section 139. 22
(2) For subsection (1), it is immaterial whether a real estate agent has not 23
been prosecuted or, if prosecuted, has or has not been convicted for an 24
offence against section 138 or 139. 25
57 Section 138 (Notice to be given about vacant land) or 139 (Buyer's rights if
notice materially defective or not given)
s 141 113 s 142
Agents and Motor Dealers
7--Sales of certain businesses 1
Division
of div 7 2
Application
141. This division applies to the sale of a business for which a restricted 3
letting agent's licence is required ("restricted letting agent's business"). 4
to be given about sale of restricted letting agent's business 5
Notice
142.(1) A real estate agent who is authorised to sell a restricted letting 6
agent's business by the seller of the business must give to a proposed buyer 7
of the business a written statement under this section. 8
Maximum penalty--200 penalty units. 9
(2) The real estate agent must give the statement to the proposed buyer 10
before the buyer signs any contract in relation to the sale. 11
(3) The statement must include the following details-- 12
(a) the business, clearly identified, to which the statement relates; 13
(b) the names and addresses of the seller of the business and the 14
proposed buyer; 15
(c) a clear statement that, to carry on the business, the proposed 16
buyer must have the approval of the body corporate of the 17
building complex in which the functions of a restricted letting 18
agent are to be performed; 19
(d) a clear statement that a person who performs the functions of a 20
restricted letting agent must-- 21
(i) hold a restricted letting agent's licence under this Act; or 22
(ii) otherwise be permitted under an Act to perform the 23
functions; 24
(e) the date on which the statement is given; 25
(f) any other thing that may be prescribed under a regulation. 26
(4) The statement must be signed by the real estate agent. 27
Maximum penalty--200 penalty units. 28
(5) The signed statement must be given to the proposed buyer and a copy 29
s 143 114 s 144
Agents and Motor Dealers
of the signed statement must be-- 1
(a) kept at the real estate agent's registered office; and 2
(b) made available for immediate inspection by an inspector who 3
asks to see it. 4
Maximum penalty--200 penalty units. 5
8--Code of conduct 6
Division
of conduct 7
Code
143. A regulation may prescribe a code of conduct about real estate 8
agency practice that may include the following-- 9
(a) setting conduct standards for real estate agents and real estate 10
salespersons; 11
(b) establishing principles for fair trading; 12
(c) providing for a system of complaint resolution. 13
about conduct 14
Complaints
144.(1) A person aggrieved by the conduct of a real estate agent or real 15
estate salesperson may complain in writing to the chief executive of the 16
conduct. 17
(2) The chief executive may investigate the complaint and, if satisfied that 18
the code of conduct has been breached, take the action about the conduct 19
allowed under this Act.58 20
(3) The investigation may take place and action may be taken even 21
though the person is no longer a real estate agent or real estate salesperson. 22
58 Breach of a code of conduct is a ground for starting disciplinary proceedings
under section 438 (Grounds for starting disciplinary proceeding).
s 145 115 s 146
Agents and Motor Dealers
PART 4--GENERAL 1
office 2
Registered
145. A real estate agent's "registered office" is-- 3
(a) for a real estate agent who is a principal licensee-- 4
(i) the place the agent specifies in the agent's application for a 5
real estate agent's licence as the agent's principal place of 6
business; or 7
(ii) another place notified to the chief executive by the agent in 8
the approved form as the agent's principal place of business; 9
and 10
(b) for a real estate agent who is an employed licensee-- 11
(i) the place the agent specifies in the licensee's application for a 12
real estate agent's licence as the agent's business address; or 13
(ii) another place notified to the chief executive by the agent in 14
the approved form as the agent's business address. 15
estate agent must notify chief executive of change in place of 16
Real
business etc. 17
146.(1) A real estate agent who is a principal licensee must notify the 18
chief executive in the approved form of-- 19
(a) any change in the agent's registered office within 14 days of the 20
change; or 21
(b) the closure of any place where the agent carries on business 22
within 14 days of the closure; or 23
(c) the opening of any place where the agent carries on business 24
within 14 days of the opening. 25
Maximum penalty--200 penalty units. 26
(2) A real estate agent who is an employed licensee must notify the chief 27
executive in the approved form of any change in the agent's registered 28
s 147 116 s 148
Agents and Motor Dealers
office within 14 days of the change. 1
Maximum penalty--200 penalty units. 2
of name of licensee 3
Publication
147.(1) A real estate agent who is a principal licensee must display at 4
each place the agent carries on business, in the way that may be prescribed 5
under a regulation-- 6
(a) the agent's name; and 7
(b) if the agent is not the person in charge of the agent's business at 8
the place--the name of the real estate agent who is in charge at the 9
place; and 10
(c) the other particulars that may be prescribed under a regulation. 11
Maximum penalty--100 penalty units. 12
(2) A real estate agent who is a principal licensee must not publish, or 13
permit to be published, in a newspaper or elsewhere an advertisement for 14
the purpose of the agent's business without stating in the advertisement the 15
particulars that may be prescribed under a regulation. 16
Maximum penalty--100 penalty units. 17
licensee must keep employment register 18
Principal
148.(1) A real estate agent who is a principal licensee must keep a 19
register ("employment register") at each place where the agent carries on 20
business. 21
Maximum penalty--200 penalty units. 22
(2) The real estate agent must enter in the employment register-- 23
(a) the name, and the other details prescribed under a regulation, of 24
each person ("employee") who is employed as a real estate agent, 25
auctioneer or real estate salesperson at the place; and 26
(b) for each real estate salesperson--the functions the salesperson is 27
authorised to perform for the agent during the employee's 28
s 149 117 s 149
Agents and Motor Dealers
employment by the agent.59 1
Maximum penalty--200 penalty units. 2
(3) The real estate agent must-- 3
(a) enter the details about each employee and, if the employee is a 4
real estate salesperson, the functions the salesperson is authorised 5
to perform, immediately after the employee is employed at the 6
place; and 7
(b) if there is a change in an employee's details or functions--correct 8
the entry in the way prescribed under the regulations immediately 9
after the change happens. 10
Maximum penalty--200 penalty units. 11
(4) The form of the register may be prescribed under a regulation. 12
ART 5--OFFENCES 13
P
as real estate agent 14
Acting
149.(1) A person must not, as an agent for someone else for reward, 15
perform a function that may be done under the authority of a real estate 16
agent's licence unless the person-- 17
(a) holds a real estate agent's licence and the performance of the 18
function is authorised under the person's licence; or 19
(b) is otherwise permitted under an Act to perform the function. 20
Maximum penalty--200 penalty units or 2 years imprisonment. 21
(2) A person must not act as a real estate agent unless-- 22
(a) the person holds a real estate agent's licence and the act is done 23
under the authority of the person's licence; or 24
59 The real estate agent must give the employee a statement under section 114
(Real estate agent must give salespersons "employment authority") clearly
specifying the employee's functions.
s 150 118 s 151
Agents and Motor Dealers
(b) the act is otherwise permitted under an Act. 1
Maximum penalty--200 penalty units or 2 years imprisonment. 2
(3) Without limiting the ways a person may act as a real estate agent, a 3
person "acts" as a real estate agent if the person-- 4
(a) performs a function mentioned in section 109(1);60 or 5
(b) advertises or notifies or states that the person-- 6
(i) performs a function mentioned in section 109(1); or 7
(ii) is willing to perform a function mentioned in section 109(1); 8
or 9
(c) in any way holds out as being ready to perform a function 10
mentioned in section 109(1). 11
estate agent must not act for more than 1 party 12
Real
150.(1) A real estate agent must not accept appointment to act for more 13
than 1 party to a transaction. 14
Maximum penalty--200 penalty units. 15
(2) If an agent accepts appointment to act for more than 1 party to a 16
transaction, each appointment is ineffective from the beginning. 17
18
Examples of subsection (2)--
19
Accepting appointment to act for both seller and buyer in the 1 transaction.
20
Accepting appointment to act for both landlord and tenant.
(3) A real estate agent does not contravene subsection (1) and 21
subsection (2) does not apply if the transaction is one involving a livestock 22
sale. 23
of licence 24
Production
151. A real estate agent must, if asked by a person with whom the agent 25
is dealing, produce the agent's licence for inspection by the person. 26
Maximum penalty--100 penalty units. 27
60 Section 109 (What a real estate agent's licence authorises)
s 152 119 s 152
Agents and Motor Dealers
of ineligible persons in real estate business 1
Employment
152.(1) A real estate agent must not employ-- 2
(a) as a real estate salesperson--a person the agent knows, or ought 3
to know, is not eligible to be employed as a real estate salesperson 4
under section 112;61 or 5
(b) in any capacity in a real estate agent's business--an ineligible 6
person. 7
Maximum penalty--200 penalty units or 1 year's imprisonment. 8
(2) Subsection (1)(b) does not apply if-- 9
(a) the chief executive approves the person's employment in a stated 10
capacity in writing; and 11
(b) the person is employed in that capacity and complies with any 12
conditions imposed by the chief executive in the approval. 13
(3) A person who is employed as a real estate salesperson knowing that 14
he or she is an ineligible person commits an offence. 15
Maximum penalty--200 penalty units or 1 year's imprisonment. 16
(4) A person who is employed in a capacity in a real estate agent's 17
business knowing that he or she is not eligible to be employed in the 18
business in that capacity commits an offence, unless-- 19
(a) the person's employment in that capacity is approved by the chief 20
executive; and 21
(b) the person complies with any conditions imposed by the chief 22
executive in the approval. 23
Maximum penalty--200 penalty units or 1 year's imprisonment. 24
(5) In this section-- 25
"ineligible person" means a person whose name is entered in the register 26
of ineligible persons. 27
61 Section 112 (Persons not eligible for employment as real estate salespersons)
s 153 120 s 154
Agents and Motor Dealers
offences about employment as real estate salespersons 1
Other
153.(1) A principal licensee who is an individual and carries on the 2
business of a real estate agent must not employ, as a real estate salesperson 3
for the business, himself or herself or another individual with whom the 4
principal licensee carries on business as a real estate agent. 5
Maximum penalty--200 penalty units. 6
(2) A principal licensee that is a corporation and carries on business as a 7
real estate agent must not employ an executive officer of the corporation as 8
a real estate salesperson for the business. 9
Maximum penalty-- 10
(a) for an individual guilty under chapter 2 of the Criminal Code of 11
an offence or for section 52962--200 penalty units; or 12
(b) for a corporation--1 000 penalty units. 13
CHAPTER 5--PASTORAL HOUSES, PASTORAL 14
HOUSE LICENSEES AND PASTORAL HOUSE 15
SALESPERSONS 16
PART 1--PASTORAL HOUSES 17
1--Pastoral house licences 18
Division
a pastoral house licence authorises 19
What
154.(1) A pastoral house licence authorises the holder of the licence 20
("pastoral house") to perform the following functions as an agent for 21
others for reward-- 22
(a) the functions of a real estate agent restricted to the sale of rural 23
62 Section 529 (Executive officers must ensure corporation complies with Act)
s 155 121 s 156
Agents and Motor Dealers
land and livestock; 1
(b) the functions of an auctioneer restricted to-- 2
(i) auctioning rural land, livestock and wool; and 3
(ii) conducting not more than 4 auctions each year of land, that 4
is not rural land, for each place of business of the pastoral 5
house in each year; and 6
(iii) auctioning plant, machinery, furniture and other items 7
situated on rural land. 8
(2) A pastoral house may perform the functions in the carrying on of a 9
business alone or with another pastoral house, real estate agent or 10
auctioneer. 11
(3) However, if the pastoral house is carrying on business with a real 12
estate agent or auctioneer, chapter 963 applies to a transaction entered into 13
for the business as if the transaction had been entered into by a real estate 14
agent or auctioneer acting alone. 15
a pastoral house director's licence authorises 16
What
155.(1) A pastoral house director's licence authorises the holder of the 17
licence ("pastoral house director") to perform the functions of a real 18
estate agent restricted to the sale of rural land and livestock for a pastoral 19
house. 20
(2) The chief executive must, by condition of the licence, limit the 21
performance of the pastoral house director's functions to a stated pastoral 22
house. 23
a pastoral house manager's licence authorises 24
What
156.(1) A pastoral house manager's licence authorises the holder of the 25
licence ("pastoral house manager") to perform the following functions 26
for a pastoral house-- 27
(a) to manage a pastoral house's business at a place, other than its 28
principal place of business; 29
63 Chapter 9 (Accounts and funds)
s 157 122 s 158
Agents and Motor Dealers
(b) to perform the functions of a real estate agent restricted to the sale 1
of rural land and livestock. 2
(2) The chief executive must, by condition of the licence, limit the 3
performance of the pastoral house manager's functions to a stated pastoral 4
house. 5
a pastoral house auctioneer's licence authorises 6
What
157.(1) A pastoral house auctioneer's licence authorises the holder of the 7
licence ("pastoral house auctioneer") to perform the functions of an 8
auctioneer for a pastoral house. 9
(2) The chief executive must, by condition of the licence, limit the 10
performance of the pastoral house auctioneer's functions to a stated pastoral 11
house. 12
2--Pastoral house responsible for acts and omissions of 13
Division
salespersons 14
for acts and omissions of pastoral house salespersons 15
Responsibility
158.(1) A pastoral house must take reasonable steps to ensure each 16
pastoral house salesperson employed by the pastoral house is properly 17
supervised, acts only within the scope of the salesperson's authority and 18
complies with this Act. 19
(2) A pastoral house manager in charge of a pastoral house's business at 20
a place must take reasonable steps to ensure each pastoral house salesperson 21
employed at the place is properly supervised, acts only within the scope of 22
the salesperson's authority and complies with this Act. 23
(3) A pastoral house or pastoral house manager who fails to meet the 24
obligations placed on the person under subsection (1) or (2) is liable to 25
disciplinary action under chapter 11.64 26
64 Chapter 11 (Compliance, discipline and claims against the fund)
s 159 123 s 160
Agents and Motor Dealers
PART 2--PASTORAL HOUSE SALESPERSONS 1
Division 1--Introduction 2
of "pastoral house salesperson" 3
Meaning
159.(1) A "pastoral house salesperson" is a person employed by a 4
pastoral house to perform the functions of a pastoral house mentioned in 5
section 154(1)(a).65 6
(2) To prevent any doubt, it is declared that a person employed by a 7
pastoral house is not a pastoral house salesperson if the person's duties are 8
only secretarial or clerical. 9
Division 2--Provisions about employment 10
not eligible for employment as salespersons 11
Persons
160.(1) Each of the following persons is not eligible to be employed as a 12
pastoral house salesperson-- 13
(a) a person who has not turned 18 years; 14
(b) a person who has been convicted, in Queensland or elsewhere, 15
within the preceding 5 years of a serious offence; 16
(c) a person who is subject to an order of a Magistrates Court or any 17
other court or a regulatory or disciplinary body, either within or 18
outside Queensland, declaring the person ineligible to be 19
employed as, or not to be entitled to perform the functions of, a 20
pastoral house salesperson, real estate salesperson or a restricted 21
letting agent (employee); 22
(d) a person whose name is entered in the register of ineligible 23
persons as ineligible to be employed as a pastoral house 24
salesperson, real estate salesperson or a restricted letting agent 25
(employee); 26
65 Section 154 (What a pastoral house licence authorises)
s 161 124 s 162
Agents and Motor Dealers
(e) a restricted letting agent; 1
(f) a corporation. 2
(2) A person must not knowingly and falsely represent to someone else 3
that the person is eligible to be employed as a pastoral house salesperson. 4
Maximum penalty for subsection (2)--200 penalty units or 1 year's 5
imprisonment. 6
as pastoral house salespersons 7
Employment
161. A pastoral house must not employ someone ("proposed 8
employee") as a pastoral house salesperson unless the pastoral house has-- 9
(a) sighted a record, not more than 1 year old, of the proposed 10
employee's criminal history and is satisfied, after sighting the 11
record, that the person is not ineligible under section 160(1)(b) to 12
be employed as a pastoral house salesperson; and 13
(b) taken reasonable action, including action to inspect the register of 14
ineligible persons,66 to satisfy itself that the proposed employee is 15
eligible to be employed as a pastoral house salesperson. 16
Maximum penalty--200 penalty units. 17
house must give salespersons "employment authority" 18
Pastoral
162.(1) Immediately after the pastoral house salesperson starts 19
employment, the pastoral house must give the salesperson an employment 20
authority. 21
Maximum penalty--200 penalty units. 22
(2) In this section-- 23
"employment authority", for a pastoral house salesperson, means a 24
statement clearly specifying the functions of a pastoral house the 25
salesperson is authorised by the pastoral house to perform for the 26
pastoral house during the salesperson's employment by the pastoral 27
house. 28
66 The chief executive is required to keep a register of ineligible persons under
section 540.
s 163 125 s 164
Agents and Motor Dealers
may declare person as ineligible person 1
Court
163.(1) A court may declare by order a person to be a person who is not 2
eligible to be employed as a pastoral house salesperson. 3
(2) The court may make an order under subsection (1) only if it is 4
satisfied-- 5
(a) the person has contravened a code of conduct made under part 3, 6
division 7;67 or 7
(b) the person has been convicted of an offence against this Act and, 8
having regard to the nature of the offence, the court considers it is 9
appropriate to make the order; or 10
(c) the person has been convicted of an offence mentioned in 11
section 160(1)(b).68 12
(3) If an order is made under subsection (1), the person's name and the 13
other details that may be prescribed under a regulation must be entered in 14
the register of ineligible persons. 15
(4) The court may make an order subject to stated conditions and may 16
vary or revoke the order at any time. 17
(5) An order may be made-- 18
(a) on conviction of a person of an offence mentioned in 19
subsection (2)(b) or (c)--on the prosecutor's application or by the 20
court on its own initiative; or 21
(b) at any time--on the application of the chief executive. 22
3--Functions of pastoral house salespersons 23
Division
of pastoral house salespersons 24
Functions
164. A pastoral house salesperson for a pastoral house may, as an 25
employee of the pastoral house and subject to the person's employment 26
67 Part 3 (Conduct provisions), division 7 (Code of conduct)
68 Section 160 (Persons not eligible for employment as salespersons)
s 165 126 s 166
Agents and Motor Dealers
authority under section 162,69 perform the functions mentioned in 1
section 154(1)(a) 70 the pastoral house is authorised to perform under this 2
Act. 3
ART 3--CONDUCT PROVISIONS 4
P
Division 1--Licensee to be in charge of a licensee's business 5
on of business under pastoral house licence 6
Carrying
165. A pastoral house must not carry on the business of a pastoral house 7
with another person unless the person is-- 8
(a) another pastoral house; or 9
(b) a real estate agent; or 10
(c) an auctioneer. 11
Maximum penalty-- 12
(a) for an individual guilty under chapter 2 of the Criminal Code of 13
an offence or for section 52971--200 penalty units; or 14
(b) for a pastoral house--1 000 penalty units. 15
to be in charge of pastoral house's business at a place 16
Licensee
166.(1) A pastoral house must ensure that-- 17
(a) the individual in charge of the pastoral house's business at the 18
pastoral house's registered office72 is a pastoral house director; 19
69 Section 162 (Pastoral house must give salespersons "employment authority")
70 Section 154 (What a pastoral house licence authorises)
71 Section 529 (Executive officers must ensure corporation complies with Act)
72 The "registered office" of a pastoral house is the pastoral house's principal
place of business. See section 191 (Registered offices).
s 167 127 s 167
Agents and Motor Dealers
and 1
(b) if the pastoral house has more than 1 place of business--at each 2
other place of business an individual who is a pastoral house 3
director, pastoral house manager or real estate agent is in charge 4
of the pastoral house's business at the place. 5
Maximum penalty-- 6
(a) for an individual guilty under chapter 2 of the Criminal Code of 7
an offence or for section 52973--200 penalty units; or 8
(b) for a pastoral house--1 000 penalty units. 9
(2) To prevent any doubt, it is declared that a person can not be in charge 10
of a pastoral house's business at more than 1 place. 11
2--Appointment 12
Division
of pastoral house--general 13
Appointment
167.(1) A pastoral house who is asked by a person ("client") to perform 14
a function ("service") for the client must not act for the client unless the 15
client first appoints the pastoral house in writing. 16
Maximum penalty-- 17
(a) for an individual guilty under chapter 2 of the Criminal Code of 18
an offence or for section 52974--200 penalty units; or 19
(b) for a pastoral house--1 000 penalty units. 20
(2) The appointment may be for the performance of-- 21
(a) a particular service ("single appointment"); or 22
(b) a number of services over a period ("continuing 23
appointment"). 24
(3) The appointment must-- 25
(a) state the service to be performed by the pastoral house and how it 26
73 Section 529 (Executive officers must ensure corporation complies with Act)
74 Section 529 (Executive officers must ensure corporation complies with Act)
s 167 128 s 167
Agents and Motor Dealers
is to be performed; and 1
(b) state-- 2
(i) in the way prescribed under a regulation--that fees, charges 3
and commission payable for the service are negotiable; and 4
(ii) if commission is payable and expressed as a percentage of 5
sale price--the amount of commission expressed in dollars 6
based on the listed sale price or, if the sale is to be by way of 7
auction, the reserve price; and 8
(c) state-- 9
(i) the fees, charges and commission payable for the service; 10
and 11
(ii) the expenses, including advertising and travelling expenses, 12
the pastoral house is authorised to incur in connection 13
with-- 14
(A) for a single appointment--the performance of the 15
service; or 16
(B) for a continuing appointment--the performance of each 17
service or category of service; and 18
(iii) any condition, limitation or restriction on the performance of 19
the service; and 20
(d) state when the fees, charges and commission for the service 21
become payable; and 22
(e) if a service to be performed is the sale of property and 23
commission is payable in relation to the service and expressed as 24
a percentage--state that the commission is worked out only on 25
the actual sale price of the property; and 26
(f) state any other information that may be prescribed under a 27
regulation. 28
Maximum penalty-- 29
(a) for an individual guilty under chapter 2 of the Criminal Code of 30
an offence or for section 529--200 penalty units; or 31
(b) for a pastoral house--1 000 penalty units. 32
s 168 129 s 168
Agents and Motor Dealers
(4) A continuing appointment must state-- 1
(a) the period of the appointment; and 2
(b) the appointment may be revoked at any time by signed writing 3
given to the other party. 4
Maximum penalty-- 5
(a) for an individual guilty under chapter 2 of the Criminal Code of 6
an offence or for section 529--200 penalty units; or 7
(b) for a pastoral house--1 000 penalty units. 8
(5) Subsection (3)(b)(ii) does not apply to a continuing appointment. 9
(6) The appointment must be signed by the client and the pastoral house 10
or someone authorised or apparently authorised to sign for the pastoral 11
house. 12
(7) The pastoral house must give a copy of the signed appointment to the 13
client. 14
Maximum penalty-- 15
(a) for an individual guilty under chapter 2 of the Criminal Code of 16
an offence or for section 529--200 penalty units; or 17
(b) for a pastoral house--1 000 penalty units. 18
(8) If an appointment under this section authorises a sale by auction, an 19
appointment under section 20775 is not required. 20
(9) This section does not apply if the service to be performed is the sale 21
of livestock. 22
of pastoral house--sole and exclusive agencies 23
Appointment
168.(1) If the appointment is for a sole or exclusive agency for the sale of 24
land, before the appointment is signed the pastoral house must give the 25
client a notice in the approved form stating-- 26
(a) the proposed term of the appointment; and 27
(b) the term is negotiable up to a maximum term of 90 days; and 28
75 Section 207 (Appointment of auctioneer--general)
s 169 130 s 169
Agents and Motor Dealers
(c) whether the appointment is under a sole agency or an exclusive 1
agency; and 2
(d) the difference between sole agency and exclusive agency;76 and 3
(e) the consequences for the client if the property is sold by someone 4
other than the pastoral house during the term of the sole or 5
exclusive agency. 6
Maximum penalty-- 7
(a) for an individual guilty under chapter 2 of the Criminal Code of 8
an offence or for section 52977--200 penalty units; or 9
(b) for a pastoral house--1 000 penalty units. 10
(2) The appointment may include provision that, at the end of the term of 11
a sole or exclusive agency, the appointment of the pastoral house continues 12
under an open listing78 that may be ended at any time by either party. 13
(3) The notice is not required to state that the term of appointment is 14
negotiable up to a maximum term of 90 days if the notice relates to property 15
prescribed under a regulation for this subsection. 16
(4) The pastoral house's requirement to give the notice under this section 17
is in addition to the pastoral house's requirement to obtain an appointment 18
under section 167. 19
house may be reappointed 20
Pastoral
169.(1) A pastoral house may be reappointed for a sole or exclusive 21
agency for 1 or more further terms of not more than 90 days. 22
(2) The reappointment must not be made until 14 days or a shorter 23
period before the term of the sole or exclusive agency ends. 24
Maximum penalty for subsection (2)-- 25
(a) for an individual guilty under chapter 2 of the Criminal Code of 26
76 For the difference between sole agency and exclusive agency, see section 19.
77 Section 529 (Executive officers must ensure corporation complies with Act)
78 See section 18 (Meaning of "open listing")
s 170 131 s 171
Agents and Motor Dealers
an offence or for section 52979--200 penalty units; or 1
(b) for a pastoral house--1 000 penalty units. 2
of appointments 3
Avoidance
170.(1) The appointment of a pastoral house is ineffective from the 4
beginning if-- 5
(a) the notice mentioned in section 16880 is not given before the 6
appointment is signed; or 7
(b) the term of the appointment is more than 90 days. 8
(2) Subsection (1)(b) does not apply to an appointment for property 9
prescribed for section 168(3). 10
(3) The reappointment of a pastoral house for a further term of sole or 11
exclusive agency is ineffective if it is made contrary to section 169(2). 12
3--Recovery of commission or reward 13
Division
on commission payable as a percentage 14
Restriction
171.(1) This section applies to a pastoral house that performs a service of 15
selling property for someone and claims commission worked out as a 16
percentage for the service. 17
(2) The pastoral house must not claim commission worked out as a 18
percentage of an amount more than the actual sale price of the property. 19
Maximum penalty for subsection (2)-- 20
(a) for an individual guilty under chapter 2 of the Criminal Code of 21
an offence or for section 52981--200 penalty units; or 22
(b) for a pastoral house--1 000 penalty units. 23
79 Section 529 (Executive officers must ensure corporation complies with Act)
80 Section 168 (Appointment of pastoral house--sole and exclusive agencies)
81 Section 529 (Executive officers must ensure corporation complies with Act)
s 172 132 s 172
Agents and Motor Dealers
on remedy for commission or reward 1
Restriction
172.(1) A person must not sue for, or recover or retain, a commission, 2
reward or expense for the performance of a function as a pastoral house 3
unless-- 4
(a) at the time the function was performed-- 5
(i) the person held a pastoral house licence; and 6
(ii) the person was authorised under the person's licence to 7
perform the function; and 8
(b) the person has been properly appointed under division 2 by the 9
person to be charged with the commission, reward or expense. 10
Maximum penalty--200 penalty units. 11
(2) A person must not sue for, or recover or retain, a commission or 12
reward for the performance of a function as a pastoral house that is more 13
than-- 14
(a) the amount of the commission or reward stated in the 15
appointment given under section 167(3);82 or 16
(b) if commission rates for the performance of the function have 17
been prescribed under a regulation--the lesser of the amount 18
stated in the appointment for the performance of the function and 19
the commission allowed under the regulation for the performance 20
of the function. 21
Maximum penalty--200 penalty units. 22
(3) A person must not sue for, or recover or retain, expenses for the 23
performance of a function as a pastoral house that is more than the lesser of 24
the following amounts-- 25
(a) the amount of the expenses stated in the appointment given under 26
section 167(3) and actually expended; 27
(b) if the amount of expenses that may be incurred in relation to the 28
performance of the function is limited under a regulation--the 29
amount allowed under the regulation. 30
Maximum penalty--200 penalty units. 31
82 Section 167 (Appointment of pastoral house--general)
s 173 133 s 175
Agents and Motor Dealers
commission etc. to be repaid 1
Excess
173.(1) This section applies if-- 2
(a) a person is convicted of an offence against section 171(2) 3
or 172;83 and 4
(b) the court before whom the person is convicted is satisfied on the 5
balance of probabilities the person, in connection with the offence, 6
has recovered or retained from someone ("client") for whom the 7
person performed a function an amount to which the person was 8
not entitled. 9
(2) The court must order the person to pay the amount to the client. 10
(3) The order must be made whether or not any penalty is imposed on 11
the conviction. 12
(4) The order may be filed in a court having jurisdiction for the recovery 13
of a debt of an equal amount and enforced as a judgment of that court. 14
4--Interests in property 15
Division
for div 4 16
Definition
174. In this division-- 17
"obtain" includes being in any way concerned in obtaining. 18
interest--options 19
Beneficial
175.(1) This section applies to property placed by a person ("client") 20
with a pastoral house for sale. 21
(2) The pastoral house commits an offence if any of the following 22
persons obtain from the client an option to purchase the property in which 23
the person has a beneficial interest-- 24
(a) the pastoral house; 25
83 Section 171 (Restriction on commission payable as a percentage) or
172 (Restriction on remedy for commission or reward)
s 176 134 s 176
Agents and Motor Dealers
(b) a pastoral house officer of the pastoral house. 1
Maximum penalty-- 2
(a) for an individual guilty under chapter 2 of the Criminal Code of 3
an offence or for section 52984--200 penalty units or 3 years 4
imprisonment; or 5
(b) for a pastoral house--1 000 penalty units. 6
(3) A pastoral house officer of the pastoral house commits an offence if 7
the officer obtains from the client an option to purchase the property in 8
which the officer has a beneficial interest. 9
Maximum penalty--200 penalty units or 3 years imprisonment. 10
(4) A pastoral house must not sell the property if any of the following 11
persons obtain a beneficial interest in an option to purchase the property-- 12
(a) the pastoral house; 13
(b) a pastoral house officer of the pastoral house. 14
Maximum penalty-- 15
(a) for an individual guilty under chapter 2 of the Criminal Code of 16
an offence or for section 529--200 penalty units or 3 years 17
imprisonment; or 18
(b) for a pastoral house--1 000 penalty units. 19
(5) It is a defence to a prosecution under subsection (2)(b) or (4)(b) for 20
the pastoral house to show that the pastoral house was not aware the 21
pastoral house officer obtained the beneficial interest and took reasonable 22
precautions and exercised proper diligence to prevent the contravention. 23
interest--other than options 24
Beneficial
176.(1) This section applies to property placed by a person ("client") 25
with a pastoral house for sale, but does apply if section 175 applies. 26
(2) The pastoral house commits an offence if any of the following 27
persons obtain a beneficial interest in the property-- 28
84 Section 529 (Executive officers must ensure corporation complies with Act)
s 176 135 s 176
Agents and Motor Dealers
(a) the pastoral house; 1
(b) a pastoral house officer of the pastoral house. 2
Maximum penalty-- 3
(a) for an individual guilty under chapter 2 of the Criminal Code of 4
an offence or for section 52985--200 penalty units or 3 years 5
imprisonment; or 6
(b) for a pastoral house--1 000 penalty units. 7
(3) A pastoral house officer of the pastoral house commits an offence if 8
the officer obtains a beneficial interest in the property. 9
Maximum penalty--200 penalty units or 3 years imprisonment. 10
(4) An offence is not committed against subsection (2) or (3) if-- 11
(a) the pastoral house or pastoral house officer-- 12
(i) obtains the client's written acknowledgment that the client-- 13
(A) is aware that the pastoral house or pastoral house 14
officer is interested in obtaining a beneficial interest in 15
the property; and 16
(B) consents to the pastoral house or pastoral house officer 17
obtaining the interest; and 18
(ii) acts fairly and honestly in relation to the sale; and 19
(b) for the sale of property--the pastoral house or pastoral house 20
officer do not accept commission or other reward for the sale; and 21
(c) the client is in substantially as good a position as if the property 22
were sold at fair market value. 23
(5) It is a defence to a prosecution under subsection (2)(b) for the 24
pastoral house to show that the pastoral house was not aware the pastoral 25
house officer obtained the beneficial interest and took reasonable 26
precautions and exercised proper diligence to prevent the contravention. 27
85 Section 529 (Executive officers must ensure corporation complies with Act)
s 177 136 s 177
Agents and Motor Dealers
orders court may make 1
Additional
177.(1) If a court convicts a person of an offence against section 175(2), 2
(3) or (4),86 the court may-- 3
(a) by order, declare that the option is ineffective; or 4
(b) if the property is sold--order the convicted person to pay to the 5
client an amount the court decides is appropriate having regard to 6
the profits resulting from the person obtaining the option. 7
(2) If a court convicts a person of an offence against section 176(2) 8
or (3), the court may-- 9
(a) by order-- 10
(i) direct that the property be retransferred to the client at the 11
convicted person's expense; and 12
(ii) direct the convicted person to pay to the client the amount of 13
the commission or other reward for the sale; or 14
(b) if, for any reason the court considers just, the property can not be 15
retransferred--by order, direct the convicted person to pay to the 16
client-- 17
(i) an amount the court decides is appropriate having regard to 18
the profits resulting from the person obtaining the beneficial 19
interest in the property; and 20
(ii) the amount of the commission or other reward for the sale. 21
(3) For the purposes of making an order under subsection (1)(b) 22
or (2)(b), the court may-- 23
(a) order that the property be valued by a person appointed by the 24
court; and 25
(b) make any order necessary to allow the valuation to be undertaken. 26
(4) If the court makes or refuses to make an order under subsection (1), 27
(2) or (3), an appeal against the order or refusal may be made to a District 28
Court in the same way a penalty imposed may be appealed. 29
(5) The court may also make the order for costs it considers appropriate. 30
86 Section 175 (Beneficial interest--options)
s 178 137 s 180
Agents and Motor Dealers
(6) An order may be made under this section on the conviction, whether 1
or not a penalty is imposed. 2
of s 176 3
Non-application
178. Section 176 does not apply in relation to livestock sales if the 4
pastoral house obtains the client's written acknowledgment that the client-- 5
(a) is aware that the pastoral house or pastoral house officer is 6
interested in obtaining a beneficial interest in the livestock; and 7
(b) consents to the pastoral house, pastoral house officer or associate 8
of the officer obtaining the interest. 9
5--Representations about finance 10
Division
for div 5 11
Definition
179. In this division-- 12
"contract", for the sale of land to which this division applies, includes any 13
document that legally binds, or is intended to legally bind, a buyer for 14
the sale. 15
about availability of finance 16
Representations
180.(1) A pastoral house must ensure a proposed buyer of land is given 17
a written statement under this section if the pastoral house or a pastoral 18
house officer of the pastoral house has made a representation to the 19
proposed buyer about finance for the purchase of the land. 20
Maximum penalty-- 21
(a) for an individual guilty under chapter 2 of the Criminal Code of 22
an offence or for section 52987--200 penalty units or 2 years 23
imprisonment; or 24
(b) for a pastoral house--1 000 penalty units. 25
87 Section 529 (Executive officers must ensure corporation complies with Act)
s 181 138 s 181
Agents and Motor Dealers
(2) The statement must be given to the proposed buyer before the buyer 1
signs any contract in relation to the land. 2
(3) The statement must include the following details-- 3
(a) the land, clearly identified, to which the statement relates; 4
(b) the names and addresses of the seller of the land and the proposed 5
buyer; 6
(c) whether a representation to the proposed buyer about finance has 7
been made by the pastoral house or a pastoral house officer of the 8
pastoral house; 9
(d) a clear statement of the representation, and the particulars of the 10
representation, made to the proposed buyer; 11
(e) the date on which the statement is given; 12
(f) any other thing that may be prescribed under a regulation. 13
(4) The statement must be signed by someone authorised by the pastoral 14
house to sign the statement and the proposed buyer. 15
(5) The pastoral house must ensure a copy of the signed statement is-- 16
(a) kept at the place of business of the pastoral house where dealings 17
with the proposed buyer were conducted; and 18
(b) made available for immediate inspection by an inspector who 19
asks to see it. 20
Maximum penalty-- 21
(a) for an individual guilty under chapter 2 of the Criminal Code of 22
an offence or for section 529--200 penalty units or 2 years 23
imprisonment; or 24
(b) for a pastoral house--1 000 penalty units. 25
rights after misrepresentation about availability of finance 26
Buyer's
181.(1) A buyer of land, by written notice ("avoidance notice") given to 27
the seller of the land or the pastoral house, may avoid a contract for the sale 28
of the land if-- 29
(a) the pastoral house or a pastoral house officer of the pastoral house 30
s 181 139 s 181
Agents and Motor Dealers
has made a representation about the availability of finance for the 1
purchase of the land to the buyer; and 2
(b) the pastoral house does not ensure that finance is made available 3
in accordance with the representation; and 4
(c) the buyer is materially affected by the pastoral house's failure. 5
(2) The avoidance notice must be given to the seller or pastoral house at 6
or before the time the contract is to be completed or immediately after that 7
time. 8
(3) The seller and the pastoral house are liable at law, jointly and 9
severally, for the repayment to the buyer of all amounts paid by the buyer 10
under the contract if the contract is avoided-- 11
(a) by the buyer under subsection (1); or 12
(b) by the seller because the buyer has failed to pay in terms of the 13
contract the purchase price or part of the purchase price because 14
of a representation mentioned in subsection (1). 15
(4) A pastoral house that is liable at law under subsection (3) for the 16
repayment to the buyer of an amount paid by the buyer under the contract 17
must repay the amount within 14 days after becoming liable. 18
Maximum penalty-- 19
(a) for an individual guilty under chapter 2 of the Criminal Code of 20
an offence or for section 52988--200 penalty units; or 21
(b) for a pastoral house--1 000 penalty units. 22
(5) The buyer may recover an amount mentioned in subsection (3) as a 23
debt in a court of competent jurisdiction. 24
(6) Judgment recovered against either person liable under subsection (3) 25
for an amount repayable under that subsection does not bar an action against 26
the other person. 27
(7) However, if separate actions are brought-- 28
(a) the amounts recoverable under the judgments given in the actions 29
must not be more, taken together, than the amount repayable to 30
the buyer; and 31
88 Section 529 (Executive officers must ensure corporation complies with Act)
s 182 140 s 183
Agents and Motor Dealers
(b) in the later of the 2 actions, the plaintiff is not entitled to costs 1
unless the court decides there were reasonable grounds for 2
bringing the action. 3
(8) If a representation is made by the pastoral house without the seller's 4
knowledge, connivance or consent, the seller may recover from the pastoral 5
house-- 6
(a) an amount paid under the contract and not received by the seller 7
that the seller has repaid to the buyer; and 8
(b) an amount for damages suffered by the seller because of the 9
buyer's avoidance of the contract. 10
(9) Subject to subsection (1), this section does not-- 11
(a) make the contract illegal or ineffective; or 12
(b) empower a party to avoid the contract. 13
of ss 180 and 181 14
Application
182.(1) Sections 180 and 18189 do not apply to a representation-- 15
(a) that the seller will transfer the land to the proposed buyer on the 16
condition the buyer executes a mortgage in the seller's favour to 17
secure an amount payable under a contract of sale for the land; or 18
(b) that the terms of the sale will be or will include a provision that 19
the purchase price or part of the purchase price is or may be 20
payable by instalments. 21
(2) An arrangement is ineffective to the extent that it purports to exclude, 22
change or restrict the application of section 180 or 181 or this section. 23
to punishment under s 180 or 181 additional to other 24
Liability
liabilities at law 25
183.(1) Liability to punishment under section 180 or 181 is in addition to 26
other liabilities at law imposed under section 181. 27
89 Sections 180 (Representations about availability of finance) and 181 (Buyer's
rights after misrepresentation about availability of finance)
s 184 141 s 186
Agents and Motor Dealers
(2) For subsection (1), it is immaterial whether a pastoral house has not 1
been prosecuted or, if prosecuted, has or has not been convicted for an 2
offence against section 180 or 181. 3
Division 6--Lands not lawfully useable for residential purposes 4
for div 6 5
Definition
184. In this division-- 6
"vacant land" means land on which there are no structural improvements, 7
other than fencing. 8
of div 6 9
Application
185. This division applies to a sale or proposed sale of vacant land if-- 10
(a) the sale is by a pastoral house either as agent for another or as 11
principal; and 12
(b) the land is within-- 13
(i) the City of Brisbane area; or 14
(ii) a local government area or joint local government area under 15
the Local Government Act 1993; and 16
(c) the land can not, as at the day of sale, be lawfully used for 17
residential purposes. 18
to be given about vacant land 19
Notice
186.(1) A pastoral house must give to a proposed buyer a written 20
statement under this section. 21
Maximum penalty-- 22
(a) for an individual guilty under chapter 2 of the Criminal Code of 23
an offence or for section 52990--200 penalty units or 2 years 24
imprisonment; or 25
90 Section 529 (Executive officers must ensure corporation complies with Act)
s 186 142 s 186
Agents and Motor Dealers
(b) for a pastoral house--1 000 penalty units. 1
(2) The pastoral house must give the statement to the proposed buyer 2
before the buyer signs any contract for the sale. 3
(3) The statement must include the following details-- 4
(a) the land, clearly identified, to which the statement relates; 5
(b) the names and addresses of the seller of the land and the proposed 6
buyer; 7
(c) a clear statement that the use of the land for residential purposes is 8
unlawful; 9
(d) a clear statement that if the buyer erects on the land a dwelling 10
house or otherwise uses the land for residential purposes contrary 11
to law-- 12
(i) the buyer may commit an offence; and 13
(ii) a named local government may be lawfully empowered to 14
demolish the dwelling house or other residential structure; 15
(e) the date on which the statement is given; 16
(f) any other thing that may be prescribed under a regulation. 17
(4) The statement must be signed by someone authorised by the pastoral 18
house to sign the statement and the proposed buyer. 19
(5) The pastoral house must-- 20
(a) keep a copy of the signed statement at the place of business of the 21
pastoral house where dealings with the proposed buyer were 22
conducted; and 23
(b) make it available for immediate inspection by an inspector who 24
asks to see it. 25
Maximum penalty-- 26
(a) for an individual guilty under chapter 2 of the Criminal Code of 27
an offence or for section 529--200 penalty units or 2 years 28
imprisonment; or 29
(b) for a pastoral house--1 000 penalty units. 30
s 187 143 s 187
Agents and Motor Dealers
(6) An arrangement is ineffective to the extent that it purports to exclude, 1
change or restrict the application of this section. 2
rights if notice not given or materially defective 3
Buyer's
187.(1) A buyer of land, by written notice ("avoidance notice") given to 4
the seller or pastoral house, may avoid a contract for the sale of the land if-- 5
(a) the buyer has not been given the notice under section 186; or 6
(b) the notice has been given to the buyer, but the notice is defective 7
in a material way. 8
(2) The avoidance notice must be given to the seller or pastoral house 9
within 6 months after the day the buyer entered into the contract. 10
(3) The seller and the pastoral house are liable at law, jointly and 11
severally, for the repayment to the buyer of all amounts paid by the buyer 12
under the contract if the contract is avoided by the buyer under 13
subsection (1). 14
(4) A pastoral house that is liable at law under subsection (3) for the 15
repayment to the buyer of an amount paid by the buyer under the contract 16
must repay the amount within 14 days after becoming liable. 17
Maximum penalty-- 18
(a) for an individual guilty under chapter 2 of the Criminal Code of 19
an offence or for section 52991--200 penalty units; or 20
(b) for a pastoral house--1 000 penalty units. 21
(5) The buyer may recover an amount mentioned in subsection (3) as a 22
debt in a court of competent jurisdiction. 23
(6) Judgment recovered against either person liable under subsection (3) 24
for an amount repayable under that subsection does not bar an action against 25
the other person. 26
(7) However, if separate actions are brought-- 27
(a) the amounts recoverable under the judgments given in the actions 28
must not be more, taken together, than the amount repayable to 29
91 Section 529 (Executive officers must ensure corporation complies with Act)
s 188 144 s 189
Agents and Motor Dealers
the buyer; and 1
(b) in the later of the 2 actions, the plaintiff is not entitled to costs 2
unless the court decides there were reasonable grounds for 3
bringing the action. 4
(8) If the buyer avoids the contract under this section after the contract is 5
completed, the buyer must, after repayment of all amounts recoverable by 6
the buyer under subsection (3)-- 7
(a) sign the documents presented to the buyer necessary to reconvey 8
title to the land to the seller or the seller's nominee; and 9
(b) deliver to the seller or the seller's nominee any instrument of title 10
in the buyer's possession or under the buyer's control. 11
(9) The buyer is not liable for any costs associated with a reconveyance 12
under subsection (8). 13
to punishment under s 186 or 187 additional to other 14
Liability
liabilities at law 15
188.(1) Liability to punishment under section 186 or 18792 is in addition 16
to other liabilities at law imposed under section 187. 17
(2) For subsection (1), it is immaterial whether a pastoral house has not 18
been prosecuted or, if prosecuted, has or has not been convicted for an 19
offence against section 186 or 187. 20
7--Code of conduct 21
Division
of conduct 22
Code
189. A regulation may prescribe a code of conduct for pastoral houses 23
that may include the following-- 24
(a) setting conduct standards for pastoral houses and pastoral house 25
officers; 26
92 Section 186 (Notice to be given about vacant land) or 187 (Buyer's rights if
notice not given or materially defective)
s 190 145 s 191
Agents and Motor Dealers
(b) establishing principles for fair trading; 1
(c) providing for a system of complaint resolution. 2
about conduct 3
Complaints
190.(1) A person aggrieved by the conduct of a pastoral house or 4
pastoral house officer may complain in writing to the chief executive of the 5
conduct. 6
(2) The chief executive may investigate the complaint and, if satisfied that 7
the code of conduct has been breached, take the action in relation to the 8
conduct allowed under this Act.93 9
(3) The investigation may take place and action may be taken against a 10
person who was a pastoral house officer even though the person is no 11
longer a pastoral house officer. 12
PART 4--GENERAL 13
offices 14
Registered
191.(1) A pastoral house's "registered office" is-- 15
(a) the place the pastoral house specifies in its application for a 16
pastoral house licence as its principal place of business; or 17
(b) another place notified to the chief executive by the pastoral house 18
in the approved form as its principal place of business. 19
(2) A pastoral house director's "registered office" is-- 20
(a) the place the pastoral house director specifies in the director's 21
application for a pastoral house director's licence as the director's 22
business address; or 23
(b) another place notified to the chief executive by the pastoral house 24
93 Breach of a code of conduct is a ground for starting disciplinary proceedings
under section 438 (Grounds for starting disciplinary proceeding).
s 192 146 s 192
Agents and Motor Dealers
director in the approved form as the director's business address. 1
(3) A pastoral house manager's "registered office" is-- 2
(a) the place the pastoral house manager specifies in the manager's 3
application for a pastoral house manager's licence as the 4
manager's business address; or 5
(b) another place notified to the chief executive by the pastoral house 6
manager in the approved form as the manager's business 7
address. 8
(4) A pastoral house auctioneer's "registered office" is-- 9
(a) the place the pastoral house auctioneer specifies in the 10
auctioneer's application for a pastoral house auctioneer's licence 11
as the auctioneer's business address; or 12
(b) another place notified to the chief executive by the pastoral house 13
auctioneer in the approved form as the auctioneer's business 14
address. 15
house etc. must notify chief executive of certain changes 16
Pastoral
192.(1) A pastoral house must notify the chief executive in the approved 17
form of-- 18
(a) any change in the pastoral house's registered office within 19
14 days of the change; or 20
(b) the closure of any place where the pastoral house carries on 21
business within 14 days of the closure; or 22
(c) the opening of any place where the pastoral house carries on 23
business within 14 days of the opening. 24
Maximum penalty-- 25
(a) for an individual guilty under chapter 2 of the Criminal Code of 26
an offence or for section 52994--200 penalty units; or 27
(b) for a pastoral house--1 000 penalty units. 28
(2) A pastoral house director, manager or auctioneer must notify the 29
94 Section 529 (Executive officers must ensure corporation complies with Act)
s 193 147 s 193
Agents and Motor Dealers
chief executive in the approved form of any change in the director's, 1
manager's or auctioneer's registered office within 14 days of the change. 2
Maximum penalty--200 penalty units. 3
(3) A pastoral house must notify the chief executive in the approved 4
form of the name of a pastoral house director who stops being a director of 5
the pastoral house. 6
Maximum penalty-- 7
(a) for an individual guilty under chapter 2 of the Criminal Code of 8
an offence or for section 529--200 penalty units; or 9
(b) for a pastoral house--1 000 penalty units. 10
(4) A pastoral house must notify the chief executive in the approved 11
form of the name of a pastoral house manager or auctioneer who stops 12
being an employee of the pastoral house. 13
Maximum penalty-- 14
(a) for an individual guilty under chapter 2 of the Criminal Code of 15
an offence or for section 529--200 penalty units; or 16
(b) for a pastoral house--1 000 penalty units. 17
of name of licensee 18
Publication
193.(1) A pastoral house must display at each place the pastoral house 19
carries on business, in the way that may be prescribed under a regulation-- 20
(a) the pastoral house's name; and 21
(b) the name of the person in charge of the pastoral house's business 22
at the place; and 23
(c) the other particulars that may be prescribed under a regulation. 24
Maximum penalty-- 25
(a) for an individual guilty under chapter 2 of the Criminal Code of 26
an offence or for section 52995--100 penalty units; or 27
(b) for a pastoral house--500 penalty units. 28
95 Section 529 (Executive officers must ensure corporation complies with Act)
s 194 148 s 194
Agents and Motor Dealers
(2) A pastoral house must not publish in a newspaper or elsewhere an 1
advertisement for the purpose of the pastoral house's business without 2
stating in the advertisement the particulars that may be prescribed under a 3
regulation. 4
Maximum penalty-- 5
(a) for an individual guilty under chapter 2 of the Criminal Code of 6
an offence or for section 529--100 penalty units; or 7
(b) for a pastoral house--500 penalty units. 8
house to keep employment register 9
Pastoral
194.(1) A pastoral house must keep a register ("employment register") 10
at each place where the pastoral house carries on business. 11
Maximum penalty-- 12
(a) for an individual guilty under chapter 2 of the Criminal Code of 13
an offence or for section 52996--200 penalty units; or 14
(b) for a pastoral house--1 000 penalty units. 15
(2) The pastoral house must enter in the employment register-- 16
(a) the name, and the other details that may be prescribed under a 17
regulation, of each person ("employee") who is employed as a 18
pastoral house manager, pastoral house auctioneer or pastoral 19
house salesperson at the place; and 20
(b) for each pastoral house salesperson--the functions the 21
salesperson is authorised to perform for the pastoral house during 22
the salesperson's employment by the pastoral house.97 23
Maximum penalty-- 24
(a) for an individual guilty under chapter 2 of the Criminal Code of 25
an offence or for section 529--200 penalty units; or 26
96 Section 529 (Executive officers must ensure corporation complies with Act)
97 The pastoral house must give the salesperson a statement under section 162
(Pastoral house must give salespersons "employment authority") clearly
specifying the salesperson's functions.
s 195 149 s 195
Agents and Motor Dealers
(b) for a pastoral house--1 000 penalty units. 1
(3) The pastoral house must-- 2
(a) enter the details about each employee and, if the employee is a 3
pastoral house salesperson, the functions the salesperson is 4
authorised to perform, immediately after the person is employed 5
at the place; and 6
(b) if there is a change in an employee's details or functions--correct 7
the entry in the way prescribed under the regulations immediately 8
after the change happens. 9
Maximum penalty-- 10
(a) for an individual guilty under chapter 2 of the Criminal Code of 11
an offence or for section 529--200 penalty units; or 12
(b) for a pastoral house--1 000 penalty units. 13
(4) The form of the register may be prescribed under a regulation. 14
ART 5--OFFENCES 15
P
as pastoral house 16
Acting
195.(1) A person must not, as an agent for someone else for reward, 17
perform a function that may be done under the authority of a pastoral house 18
licence unless the person-- 19
(a) holds a pastoral house licence and the performance of the function 20
is authorised under the person's licence; or 21
(b) is otherwise permitted under an Act to perform the function. 22
Maximum penalty--200 penalty units or 2 years imprisonment. 23
(2) A person must not act as a pastoral house unless-- 24
(a) the person holds a pastoral house licence and the act is done under 25
the authority of the person's licence; or 26
(b) the act is otherwise permitted under an Act. 27
s 196 150 s 197
Agents and Motor Dealers
Maximum penalty--200 penalty units or 2 years imprisonment. 1
(3) Without limiting the ways a person may act as a pastoral house, a 2
person "acts" as a pastoral house if the person-- 3
(a) performs a function mentioned in section 154(1);98 or 4
(b) advertises, notifies or states that the person-- 5
(i) performs a function mentioned in section 154(1); or 6
(ii) is willing to perform a function mentioned in section 154(1); 7
or 8
(c) in any way holds out as being ready to perform a function 9
mentioned in section 154(1). 10
as pastoral house director 11
Acting
196. A person must not, as an agent for someone else for reward, 12
perform a function that may be done under the authority of a pastoral house 13
director's licence unless the person-- 14
(a) holds a pastoral house director's licence and the performance of 15
the function is authorised under the person's licence; or 16
(b) is otherwise permitted under an Act to perform the function. 17
Maximum penalty--200 penalty units or 2 years imprisonment. 18
as pastoral house manager 19
Acting
197. A person must not, as an agent for someone else for reward, 20
perform a function that may be done under the authority of a pastoral house 21
manager's licence unless the person-- 22
(a) holds a pastoral house manager's licence and the performance of 23
the function is authorised under the person's licence; or 24
(b) is otherwise permitted under an Act to perform the function. 25
Maximum penalty--200 penalty units or 2 years imprisonment. 26
98 Section 154 (What a pastoral house licence authorises)
s 198 151 s 200
Agents and Motor Dealers
as pastoral house auctioneer 1
Acting
198. A person must not perform a function that may be done under the 2
authority of a pastoral house auctioneer's licence unless the person-- 3
(a) holds a pastoral house auctioneer's licence and the performance 4
of the function is authorised under the person's licence; or 5
(b) is otherwise permitted under an Act to perform the function. 6
Maximum penalty--200 penalty units or 2 years imprisonment. 7
house must not act for more than 1 party 8
Pastoral
199.(1) A pastoral house must not accept appointment to act for more 9
than 1 party to a transaction. 10
Maximum penalty-- 11
(a) for an individual guilty under chapter 2 of the Criminal Code of 12
an offence or for section 52999--200 penalty units; or 13
(b) for a pastoral house--1 000 penalty units. 14
(2) If a pastoral house accepts appointment to act for more than 1 party to 15
a transaction, each appointment is ineffective from the beginning. 16
17
Examples of subsection (2)--
18
Accepting appointment to act for both seller and buyer in the 1 transaction.
19
Accepting appointment to act for both livestock producer and buyer.
(3) A pastoral house does not contravene subsection (1) and 20
subsection (2) does not apply if the transaction is one involving a livestock 21
sale. 22
of licence 23
Production
200.(1) A pastoral house officer must, if asked by a person with whom 24
the officer is dealing, produce the officer's licence for inspection by the 25
person. 26
Maximum penalty--100 penalty units. 27
99 Section 529 (Executive officers must ensure corporation complies with Act)
s 201 152 s 201
Agents and Motor Dealers
(2) In this section-- 1
"pastoral house officer" does not include a pastoral salesperson. 2
of ineligible persons in pastoral house business 3
Employment
201.(1) A pastoral house must not employ-- 4
(a) as a pastoral house salesperson--a person the pastoral house 5
knows, or ought to know, is not eligible to be employed as a 6
pastoral house salesperson under section 160;100 or 7
(b) in any capacity in a pastoral house business--an ineligible person. 8
Maximum penalty--200 penalty units or 1 year's imprisonment. 9
(2) Subsection (1)(b) does not apply if-- 10
(a) the chief executive approves the person's employment in a stated 11
capacity in writing; and 12
(b) the person is employed in that capacity and complies with any 13
conditions imposed by the chief executive in the approval. 14
(3) A person who is employed as a pastoral house salesperson knowing 15
that he or she is an ineligible person commits an offence. 16
Maximum penalty--200 penalty units or 1 year's imprisonment. 17
(4) A person who is employed in a capacity in a pastoral house business 18
knowing that he or she is not eligible to be employed in the business in that 19
capacity commits an offence, unless-- 20
(a) the person's employment in that capacity is approved by the chief 21
executive; and 22
(b) the person complies with any conditions imposed by the chief 23
executive in the approval. 24
Maximum penalty--200 penalty units or 1 year's imprisonment. 25
(5) In this section-- 26
"ineligible person" means a person whose name is entered in the register 27
of ineligible persons. 28
100 Section 160 (Persons not eligible for employment as salespersons)
s 202 153 s 203
Agents and Motor Dealers
offences about employment as pastoral house salespersons 1
Other
202. A pastoral house must not employ an executive officer of the 2
pastoral house as a pastoral house salesperson for the pastoral house. 3
Maximum penalty-- 4
(a) for an individual guilty under chapter 2 of the Criminal Code of 5
an offence or for section 529101--200 penalty units; or 6
(b) for a pastoral house--1 000 penalty units. 7
CHAPTER 6--AUCTIONEERS AND TRAINEE 8
AUCTIONEERS 9
PART 1--AUCTIONEERS 10
an auctioneer's licence authorises 11
What
203.(1) An auctioneer's licence authorises the holder of the licence 12
("auctioneer") to perform the function of selling or attempting to sell or 13
offering for sale or resale any property by way of auction. 14
(2) An auctioneer's licence also authorises the auctioneer to sell the 15
property by any means during the auction period. 16
(3) An auctioneer may perform the function-- 17
(a) in the carrying on of a business, either alone or with others; or 18
(b) as an employee of-- 19
(i) an auctioneer; or 20
(ii) a real estate agent; or 21
(iii) a pastoral house; or 22
(iv) a motor dealer. 23
101 Section 529 (Executive officers must ensure corporation complies with Act)
s 204 154 s 205
Agents and Motor Dealers
(4) In this section-- 1
"auction period" means the period starting on the day 1 month before the 2
day set for the auction and ending 1 month after the day of the auction. 3
PART 2--TRAINEE AUCTIONEERS 4
a trainee auctioneer's licence authorises 5
What
204.(1) A trainee auctioneer's licence authorises the holder of the licence 6
("trainee auctioneer") to perform the function of an auctioneer under the 7
direct supervision and instruction of an auctioneer. 8
(2) The chief executive must, by condition of the licence, limit the 9
performance of the function by the trainee auctioneer to the direct 10
supervision and instruction of the auctioneer or auctioneers specified on the 11
licence. 12
ART 3--CONDUCT PROVISIONS 13
P
Division 1--Licensee to be in charge of a licensee's business 14
on of business under auctioneer's licence 15
Carrying
205. An individual who carries on the business of a auctioneer with 16
others is not required to hold an auctioneer's licence if-- 17
(a) at least 1 of the persons with whom the individual carries on 18
business is an auctioneer; and 19
(b) the individual does not perform the function of an auctioneer; and 20
(c) the individual is a suitable person to hold a licence. 21
s 206 155 s 207
Agents and Motor Dealers
to be in charge of auctioneer's business at a place 1
Licensee
206.(1) An auctioneer who is an individual and a principal licensee 2
must-- 3
(a) be in charge of the auctioneer's business at the auctioneer's 4
registered office;102 and 5
(b) if the auctioneer has more than 1 place of business--ensure that at 6
each other place of business an individual who is an auctioneer is 7
in charge of the auctioneer's business at the place. 8
Maximum penalty--200 penalty units. 9
(2) An auctioneer that is a corporation and a principal licensee 10
("corporate auctioneer") must ensure that-- 11
(a) the individual in charge of the corporate auctioneer's business at 12
its registered office is an auctioneer; and 13
(b) if the corporate auctioneer has more than 1 place of business--at 14
each other place of business an individual who is an auctioneer is 15
in charge of the corporate auctioneer's business at the place. 16
Maximum penalty-- 17
(a) for an individual guilty under chapter 2 of the Criminal Code of 18
an offence or for section 529103--200 penalty units; or 19
(b) for a corporation--1 000 penalty units. 20
(3) To remove any doubt, it is declared that an auctioneer can not be in 21
charge of an auctioneer's business at more than 1 place of business. 22
2--Appointment 23
Division
of auctioneer--general 24
Appointment
207.(1) An auctioneer who is asked by a person ("client") to perform a 25
function ("service") for the client must not act for the client unless the client 26
first appoints the auctioneer in writing. 27
102 See section 249 (Registered office).
103 Section 529 (Executive officers must ensure corporation complies with Act)
s 207 156 s 207
Agents and Motor Dealers
Maximum penalty--200 penalty units. 1
(2) The appointment may be for the performance of-- 2
(a) a particular service ("single appointment"); or 3
(b) a number of services over a period ("continuing 4
appointment"). 5
(3) The appointment must-- 6
(a) state the service to be performed by the auctioneer and how it is to 7
be performed; and 8
(b) state the day set for the auction; and 9
(c) state-- 10
(i) in the way prescribed under a regulation--that fees, charges 11
and commission payable for the service are negotiable; and 12
(ii) if commission is payable and expressed as a percentage of 13
sale price--the amount of commission expressed in dollars 14
based on the reserve sale price; and 15
(d) state-- 16
(i) the fees, charges and commission payable for the service; 17
and 18
(ii) the expenses, including advertising and travelling expenses, 19
the auctioneer is authorised to incur in connection with-- 20
(A) for a single appointment--the performance of the 21
service; or 22
(B) for a continuing appointment--the performance of each 23
service or category of service; and 24
(iii) any condition, limitation or restriction on the performance of 25
the service; and 26
(e) state when the fees, charges and commission for the service 27
become payable; and 28
(f) if the service to be provided is the sale of property and 29
commission is payable for the service and expressed as a 30
percentage--state that the commission is worked out only on the 31
actual sale price of the property; and 32
s 208 157 s 208
Agents and Motor Dealers
(g) state any other information that may be prescribed under a 1
regulation. 2
Maximum penalty--200 penalty units. 3
(4) A continuing appointment must state-- 4
(a) the date the appointment ends; and 5
(b) the appointment may be revoked at any time by signed writing 6
given to the other party. 7
Maximum penalty--200 penalty units. 8
(5) Subsection (3)(c)(ii) does not apply to a continuing appointment. 9
(6) The appointment must be signed by the client and the auctioneer or 10
someone authorised or apparently authorised to sign for the auctioneer. 11
(7) The auctioneer must give a copy of the signed appointment to the 12
client. 13
Maximum penalty for subsection (7)--200 penalty units. 14
of auctioneer--sole and exclusive agencies 15
Appointment
208.(1) If the appointment is for a sole or exclusive agency, before the 16
appointment is signed the auctioneer must give the client a notice in the 17
approved form stating the following-- 18
(a) the proposed term of the appointment; 19
(b) the term is negotiable up to a maximum term of 90 days; 20
(c) whether the appointment is under a sole agency or an exclusive 21
agency; 22
(d) the difference between sole agency and exclusive agency;104 23
(e) the consequences for the client if the property is sold by someone 24
other than the auctioneer during the term of the sole or exclusive 25
agency. 26
Maximum penalty--200 penalty units. 27
(2) The notice is not required to state that the term of appointment is 28
104 For the difference between sole and exclusive agency, see section 19.
s 209 158 s 211
Agents and Motor Dealers
negotiable up to a maximum term of 90 days if the notice relates to property 1
prescribed under a regulation for this subsection. 2
(3) The auctioneer's requirement to give the notice under this section is in 3
addition to the auctioneer's requirement to obtain an appointment under 4
section 207. 5
may be reappointed 6
Auctioneers
209.(1) An auctioneer may be reappointed for a sole or exclusive agency 7
for 1 or more further terms of not more than 90 days. 8
(2) The reappointment must not be made until 14 days or a shorter 9
period before the initial term of the sole or exclusive agency ends. 10
Maximum penalty for subsection (2)--200 penalty units. 11
of appointments 12
Avoidance
210.(1) The appointment of an auctioneer is ineffective from the 13
beginning if-- 14
(a) the notice mentioned in section 208 105 is not given before the 15
appointment is signed; or 16
(b) the term of an appointment for a sole or exclusive agency is more 17
than 90 days. 18
(2) Subsection (1)(b) does not apply to an appointment for property 19
prescribed for section 208(2). 20
(3) The reappointment of an auctioneer for a further term of sole or 21
exclusive agency is ineffective if it is made contrary to section 209(2). 22
3--Chattel auctions 23
Division
premium 24
Buyer's
211.(1) This section applies to an auction of chattels. 25
105 Section 208 (Appointment of auctioneer--sole and exclusive agencies)
s 212 159 s 213
Agents and Motor Dealers
(2) An auctioneer must not charge the buyer of a chattel a buyer's 1
premium unless the auctioneer-- 2
(a) before the auction--obtains the written consent of the owner of 3
the chattel; and 4
(b) discloses, in the way prescribed under a regulation, that a buyer's 5
premium is payable on the purchase of the chattel. 6
Maximum penalty--200 penalty units. 7
(3) The auctioneer does not act for the buyer of the chattel merely 8
because the auctioneer accepts a buyer's premium from the buyer. 9
(4) In this section-- 10
"buyer's premium" means an amount payable to the auctioneer by a buyer 11
on the purchase of a chattel. 12
"chattel" does not include a leasehold interest in land. 13
"owner", of a chattel, includes a person who is lawfully entitled to sell the 14
chattel. 15
4--Recovery of commission or reward 16
Division
on commission payable as a percentage 17
Restriction
212.(1) This section applies to an auctioneer who performs a service of 18
selling property for someone and claims commission worked out as a 19
percentage for the service. 20
(2) The auctioneer must not claim commission worked out as a 21
percentage of an amount more than the actual sale price of the property. 22
Maximum penalty for subsection (2)--200 penalty units. 23
on remedy for commission or reward 24
Restriction
213.(1) A person must not sue for, or recover or retain, a commission, 25
reward or expense for the performance of a function as an auctioneer 26
unless-- 27
(a) at the time the function was performed-- 28
s 214 160 s 214
Agents and Motor Dealers
(i) the person held an auctioneer's licence; and 1
(ii) the person was authorised under the person's licence to 2
perform the function; and 3
(b) the person has been properly appointed under division 2 by the 4
person to be charged with the commission, reward or expense. 5
Maximum penalty--200 penalty units. 6
(2) A person must not sue for, or recover or retain, a commission or 7
reward for the performance of a function as an auctioneer that is more 8
than-- 9
(a) the amount of the commission or reward stated in the 10
appointment given under section 207(3);106 or 11
(b) if commission rates for the performance of the function have 12
been prescribed under a regulation--the lesser of the amount 13
stated in the appointment for the performance of the function and 14
the commission allowed under the regulation for the performance 15
of the function. 16
Maximum penalty--200 penalty units. 17
(3) A person must not sue for, or recover or retain, expenses for the 18
performance of a function as an auctioneer that is more than the lesser of the 19
following amounts-- 20
(a) the amount of the expenses stated in the appointment given under 21
section 207(3) and actually expended; 22
(b) if the amount of expenses that may be incurred in relation to the 23
performance of the function is limited under a regulation--the 24
amount allowed under the regulation. 25
Maximum penalty--200 penalty units. 26
commission etc. to be repaid 27
Excess
214.(1) This section applies if-- 28
(a) a person is convicted of an offence against section 212(2) 29
106 Section 207 (Appointment of auctioneer--general)
s 215 161 s 216
Agents and Motor Dealers
or 213;107 and 1
(b) the court before whom the person is convicted is satisfied on the 2
balance of probabilities the person, in connection with the offence, 3
has recovered or retained from someone ("client") for whom the 4
person performed a function an amount to which the person was 5
not entitled. 6
(2) The court must order the person to pay the amount to the client. 7
(3) The order must be made whether or not any penalty is imposed on 8
the conviction. 9
(4) The order may be filed in a court having jurisdiction for the recovery 10
of a debt of an equal amount and enforced as a judgment of that court. 11
5--Interests in property 12
Division
for div 4 13
Definition
215. In this division-- 14
"obtain" includes being in any way concerned in obtaining. 15
interest--options 16
Beneficial
216.(1) This section applies to property placed by a person ("client") 17
with an auctioneer for sale. 18
(2) The auctioneer commits an offence if any of the following persons 19
obtain from the client an option to purchase the property in which the 20
person has a beneficial interest-- 21
(a) the auctioneer; 22
(b) a trainee auctioneer under the supervision or instruction of the 23
auctioneer. 24
Maximum penalty--200 penalty units or 3 years imprisonment. 25
107 Section 212 (Restriction on commission payable as a percentage) or
213 (Restriction on remedy for commission or reward)
s 217 162 s 217
Agents and Motor Dealers
(3) A trainee auctioneer under the supervision or instruction of the 1
auctioneer commits an offence if the trainee obtains from the client an 2
option to purchase the property in which the trainee has a beneficial interest. 3
Maximum penalty--200 penalty units or 3 years imprisonment. 4
(4) An auctioneer must not sell property if any of the following persons 5
obtain a beneficial interest in an option to purchase the property-- 6
(a) the auctioneer; 7
(b) a trainee auctioneer authorised to perform the function of an 8
auctioneer under the supervision or instruction of the auctioneer. 9
Maximum penalty--200 penalty units or 3 years imprisonment. 10
(5) It is a defence to a prosecution under subsection (2)(b) or (4)(b) for 11
the auctioneer to show that the auctioneer was not aware the trainee 12
auctioneer obtained the beneficial interest and exercised proper diligence to 13
prevent the contravention. 14
interest--other than options 15
Beneficial
217.(1) This section applies to property placed by a person ("client") 16
with an auctioneer for sale, but does not apply if section 216 applies. 17
(2) The auctioneer commits an offence if any of the following persons 18
obtain a beneficial interest in the property-- 19
(a) the auctioneer; 20
(b) a trainee auctioneer under the supervision or instruction of the 21
auctioneer. 22
Maximum penalty--200 penalty units or 3 years imprisonment. 23
(3) A trainee auctioneer under the supervision or instruction of the 24
auctioneer commits an offence if the trainee obtains a beneficial interest in 25
the property. 26
Maximum penalty--200 penalty units or 3 years imprisonment. 27
(4) A person does not contravene subsection (2) or (3) if-- 28
(a) the auctioneer or trainee auctioneer-- 29
(i) obtains the client's written acknowledgment that the client-- 30
s 218 163 s 218
Agents and Motor Dealers
(A) is aware that the auctioneer or trainee is interested in 1
obtaining a beneficial interest in the property; and 2
(B) consents to the auctioneer or trainee obtaining the 3
interest; and 4
(ii) acts fairly and honestly in relation to the sale; and 5
(b) for the sale of property--the auctioneer does not accept 6
commission or other reward for the sale; and 7
(c) the client is in substantially as good a position as if the property 8
were sold for fair market value. 9
(5) If the auctioneer or trainee auctioneer has not obtained the 10
acknowledgment mentioned in subsection (4)(a)(i) and the auctioneer or 11
trainee knows, or ought to know, an associate of the auctioneer or trainee 12
intends bidding at the auction, the auctioneer or trainee must, immediately 13
before the auction-- 14
(a) identify the associate to those present at the auction; and 15
(b) announce to those present that the person is an associate of the 16
auctioneer or trainee and intends bidding at the auction. 17
(6) If the auctioneer or trainee auctioneer complies with subsection (5), 18
the auctioneer or trainee is taken to have satisfied subsection (4)(a)(i). 19
(7) It is a defence to a prosecution under subsection (2)(b) for the 20
auctioneer to show that the auctioneer was not aware the trainee obtained the 21
beneficial interest and took reasonable precautions and exercised proper 22
diligence to prevent the contravention. 23
orders court may make 24
Additional
218.(1) If a court convicts a person of an offence against section 216(2) 25
or (4),108 the court may-- 26
(a) by order, declare that the option is ineffective; or 27
(b) if the property is sold--order the convicted person to pay to the 28
client an amount the court decides is appropriate having regard to 29
the profits resulting from the person obtaining the option. 30
108 Section 216 (Beneficial interest--options)
s 219 164 s 219
Agents and Motor Dealers
(2) If a court convicts a person of an offence against section 217(2) 1
or (3), the court may-- 2
(a) by order-- 3
(i) direct that the property be retransferred to the client at the 4
convicted person's expense; and 5
(ii) direct the convicted person to pay to the client the amount of 6
the commission or other reward for the sale; or 7
(b) if, for any reason the court considers just, the property can not be 8
retransferred--by order, direct the convicted person to pay to the 9
client-- 10
(i) an amount the court decides is appropriate having regard to 11
the profits resulting from the person obtaining the beneficial 12
interest in the property; and 13
(ii) the amount of the commission or other reward for the sale. 14
(3) For the purposes of making an order under subsection (1)(b) 15
or (2)(b), the court may-- 16
(a) order that the property be valued by a person appointed by the 17
court; and 18
(b) make any order necessary to allow the valuation to be undertaken. 19
(4) If the court makes or refuses to make an order under subsection (1), 20
(2) or (3), an appeal against the order or refusal may be made to a District 21
Court in the same way a penalty imposed may be appealed. 22
(5) The court may also make an order for costs it considers appropriate. 23
(6) An order may be made under this section on the conviction, whether 24
or not a penalty is imposed. 25
of s 217 26
Non-application
219. Section 217 does not apply in relation to livestock sales if the 27
auctioneer obtains the client's written acknowledgment that the client-- 28
(a) is aware that the auctioneer or trainee auctioneer is interested in 29
obtaining a beneficial interest in the livestock; and 30
s 220 165 s 221
Agents and Motor Dealers
(b) consents to the auctioneer or trainee auctioneer obtaining the 1
interest. 2
6--Representations about finance 3
Division
for div 6 4
Definition
220. In this division-- 5
"contract", in relation to the sale of land to which this division applies, 6
includes any document that legally binds, or is intended to legally bind, 7
a buyer in relation to the sale. 8
about availability of finance 9
Representations
221.(1) An auctioneer must ensure a proposed buyer of land is given a 10
written statement under this section if the auctioneer or a trainee auctioneer 11
acting under the supervision or instruction of the auctioneer has made a 12
representation to the proposed buyer about finance for the purchase of the 13
land. 14
Maximum penalty--200 penalty units or 2 years imprisonment. 15
(2) The statement must be given to the proposed buyer before the buyer 16
signs any contract in relation to the land. 17
(3) The statement must include the following details-- 18
(a) the land, clearly identified, to which the statement relates; 19
(b) the names and addresses of the seller of the land and the proposed 20
buyer; 21
(c) whether a representation to the proposed buyer about finance has 22
been made by the auctioneer or a trainee auctioneer acting under 23
the supervision or instruction of the auctioneer; 24
(d) a clear statement of the representation, and the particulars of the 25
representation, made to the proposed buyer; 26
(e) the date on which the statement is given; 27
(f) any other thing that may be prescribed under a regulation. 28
s 222 166 s 222
Agents and Motor Dealers
(4) The statement must be signed by the auctioneer or someone 1
authorised to sign for the auctioneer and the proposed buyer. 2
(5) The auctioneer must-- 3
(a) keep a copy of the signed statement at the auctioneer's place of 4
business; and 5
(b) make it available for immediate inspection by the chief executive 6
or an inspector who asks to see it. 7
Maximum penalty for subsection (5)--200 penalty units or 2 years 8
imprisonment. 9
rights after misrepresentation about availability of finance 10
Buyer's
222.(1) A buyer of land, by written notice ("avoidance notice") given to 11
the seller of the land or the auctioneer, may avoid a contract for the sale of 12
the land if-- 13
(a) the auctioneer or a trainee auctioneer acting under the supervision 14
or instruction of the auctioneer has made a representation about 15
the availability of finance for the purchase of the land to the buyer; 16
and 17
(b) the auctioneer does not ensure that finance is made available in 18
accordance with the representation; and 19
(c) the buyer is materially affected by the auctioneer's failure. 20
(2) The avoidance notice must be given to the seller or auctioneer at or 21
before the time the contract is due to be completed or immediately after that 22
time. 23
(3) The seller and the auctioneer are liable at law, jointly and severally, 24
for the repayment to the buyer of all amounts paid by the buyer under the 25
contract if the contract is avoided-- 26
(a) by the buyer under subsection (1); or 27
(b) by the seller because the buyer has failed to pay in terms of the 28
contract the purchase price or part of the purchase price because 29
of a representation mentioned in subsection (1). 30
(4) An auctioneer who is liable at law under subsection (3) for the 31
repayment to the buyer of an amount paid by the buyer under the contract 32
s 223 167 s 223
Agents and Motor Dealers
must repay the amount within 14 days after becoming liable. 1
Maximum penalty--200 penalty units or 1 year's imprisonment. 2
(5) The buyer may recover an amount mentioned in subsection (3) as a 3
debt in a court of competent jurisdiction. 4
(6) Judgment recovered against either person liable under subsection (3) 5
for an amount repayable under that subsection does not bar an action against 6
the other person. 7
(7) However, if separate actions are brought-- 8
(a) the amounts recoverable under the judgments given in the actions 9
must not be more, taken together, than the amount repayable to 10
the buyer; and 11
(b) in the later of the 2 actions, the plaintiff is not entitled to costs 12
unless the court decides there were reasonable grounds for 13
bringing the action. 14
(8) If a representation is made by the auctioneer or trainee auctioneer 15
without the seller's knowledge, connivance or consent, the seller may 16
recover from the auctioneer-- 17
(a) an amount paid under the contract and not received by the seller 18
that the seller has repaid to the buyer; and 19
(b) an amount for damages suffered by the seller because of the 20
buyer's avoidance of the contract. 21
(9) Subject to subsection (1), this section does not-- 22
(a) make the contract illegal or ineffective; or 23
(b) empower a party to avoid the contract. 24
of ss 221 and 222 25
Application
223.(1) Sections 221 and 222109 do not apply to a representation-- 26
(a) that the seller will transfer the land to the proposed buyer on the 27
condition the buyer executes a mortgage in the seller's favour to 28
109 Sections 221 (Representations about availability of finance) and 222 (Buyer's
rights after misrepresentation about availability of finance)
s 224 168 s 226
Agents and Motor Dealers
secure an amount payable under a contract of sale for the land; or 1
(b) that the terms of the sale will be or will include a provision that 2
the purchase price or part of the purchase price is or may be 3
payable by instalments. 4
(2) An arrangement is ineffective to the extent that it purports to exclude, 5
change or restrict the application of section 221 or 222 or this section. 6
to punishment under s 221 or 222 additional to other 7
Liability
liabilities at law 8
224.(1) Liability to punishment under section 221 or 222 is in addition to 9
other liabilities at law imposed under section 222. 10
(2) For subsection (1), it is immaterial whether an auctioneer has not 11
been prosecuted or, if prosecuted, has or has not been convicted for an 12
offence against section 221 or 222. 13
Division 7--Lands not lawfully useable for residential purposes 14
for div 7 15
Definition
225. In this division-- 16
"vacant land" means land on which there are no structural improvements, 17
other than fencing. 18
of div 7 19
Application
226. This division applies to a sale or proposed sale of vacant land if-- 20
(a) the sale is by an auctioneer either as agent for another or as 21
principal; and 22
(b) the land is within-- 23
(i) the City of Brisbane area; or 24
(ii) a local government area or joint local government area under 25
the Local Government Act 1993; and 26
s 227 169 s 227
Agents and Motor Dealers
(c) the land can not, as at the day of sale, be lawfully used for 1
residential purposes. 2
to be given about vacant land 3
Notice
227.(1) An auctioneer must-- 4
(a) immediately before the auction, announce that the land can not, as 5
at the day of auction, be lawfully used for residential purposes; 6
and 7
(b) immediately after the auction, give to the proposed buyer a 8
written statement under this section. 9
Maximum penalty--200 penalty units or 2 years imprisonment. 10
(2) The auctioneer must give the statement to the proposed buyer before 11
the buyer signs any contract in relation to the sale. 12
(3) The statement must include the following details-- 13
(a) the land, clearly identified, to which the statement relates; 14
(b) the names and addresses of the seller of the land and the proposed 15
buyer; 16
(c) a clear statement that the use of the land for residential purposes is 17
unlawful; 18
(d) a clear statement that if the buyer erects on the land a dwelling 19
house or otherwise uses the land for residential purposes contrary 20
to law-- 21
(i) the buyer may commit an offence; and 22
(ii) a named local government may be lawfully empowered to 23
demolish the dwelling house or other residential structure; 24
and 25
(e) the date on which the statement is given; 26
(f) any other thing that may be prescribed under a regulation. 27
(4) The statement must be signed by the auctioneer and the proposed 28
buyer. 29
(5) The auctioneer must-- 30
s 228 170 s 228
Agents and Motor Dealers
(a) keep a copy of the signed statement at the auctioneer's place of 1
business; and 2
(b) make it available for immediate inspection by an inspector who 3
asks to see it. 4
Maximum penalty--200 penalty units or 2 years imprisonment. 5
(6) An arrangement is ineffective to the extent that it purports to exclude, 6
change or restrict the application of this section. 7
rights if notice not given or materially defective 8
Buyer's
228.(1) A buyer of land, by written notice ("avoidance notice") given to 9
the seller of the land or the auctioneer, may avoid a contract for the sale of 10
the land if-- 11
(a) the buyer has not been given the notice under section 227; or 12
(b) the notice has been given to the buyer, but the notice is defective 13
in a material way. 14
(2) The avoidance notice must be given to the seller or auctioneer within 15
6 months after the day the buyer entered into the contract. 16
(3) The seller and the auctioneer are liable at law, jointly and severally, 17
for the repayment to the buyer of all amounts paid by the buyer under the 18
contract if the contract is avoided by the buyer under subsection (1). 19
(4) An auctioneer who is liable at law under subsection (3) for the 20
repayment to the buyer of an amount paid by the buyer under the contract 21
must repay the amount within 14 days after becoming liable. 22
Maximum penalty--200 penalty units or 1 year's imprisonment. 23
(5) The buyer may recover an amount mentioned in subsection (3) as a 24
debt in a court of competent jurisdiction. 25
(6) Judgment recovered against either person liable under subsection (3) 26
for an amount repayable under that subsection does not bar an action against 27
the other person. 28
(7) However, if separate actions are brought-- 29
(a) the amounts recoverable under the judgments given in the actions 30
must not be more, taken together, than the amount repayable to 31
s 229 171 s 230
Agents and Motor Dealers
the buyer; and 1
(b) in the later of the 2 actions, the plaintiff is not entitled to costs 2
unless the court decides there were reasonable grounds for 3
bringing the action. 4
(8) If the buyer avoids the contract under this section after the contract is 5
completed, the buyer must, after repayment of all amounts recoverable by 6
the buyer under subsection (3)-- 7
(a) sign the documents presented to the buyer necessary to reconvey 8
title to the land to the seller or the seller's nominee; and 9
(b) deliver to the seller or the seller's nominee any instrument of title 10
in the buyer's possession or under the buyer's control. 11
(9) The buyer is not liable for any costs associated with a reconveyance 12
under subsection (8). 13
to punishment under s 227 or 228 additional to other 14
Liability
liabilities at law 15
229.(1) Liability to punishment under section 227 or 228110 is in addition 16
to other liabilities at law imposed under section 228. 17
(2) For subsection (1), it is immaterial whether an auctioneer has not 18
been prosecuted or, if prosecuted, has or has not been convicted for an 19
offence against section 227 or 228. 20
Division 8--Sales of livestock 21
of livestock 22
Sales
230.(1) This section applies to sales of livestock by an auctioneer. 23
(2) The auctioneer may pay over the proceeds from the sale to the person 24
("client") appointing the auctioneer to conduct the auction only if-- 25
(a) the auctioneer-- 26
110 Section 227 (Notice to be given about vacant land) or 228 (Buyer's rights if
notice not given or materially defective)
s 231 172 s 232
Agents and Motor Dealers
(i) has known the client for at least 1 year; and 1
(ii) in the auctioneer's opinion, the client is a person of good 2
repute; and 3
(ii) has no reason to believe the client is not lawfully entitled to 4
sell the livestock; or 5
(b) the auctioneer receives a certificate for the client from a referee. 6
(3) A referee may give a certificate for the client only if the referee-- 7
(a) has known the client for at least 1 year; and 8
(b) in the referee's opinion, the client is a person of good repute; and 9
(c) has no reason to believe the client is not lawfully entitled to sell 10
the livestock. 11
(4) In this section-- 12
"referee" means a person the auctioneer has known for at least 1 year who, 13
in the auctioneer's opinion, is a person of good repute. 14
for auctioneer 15
Protection
231.(1) This section applies if a court finds, in relation to livestock sold 16
by an auctioneer, that the client was not lawfully entitled to sell the livestock. 17
(2) An auctioneer who, acting in good faith and without negligence, 18
complies with section 230 is not liable to the owner of the livestock merely 19
because the auctioneer took possession or gave delivery of the livestock. 20
9--Guarantee of title for motor vehicles 21
Division
of title for motor vehicles 22
Guarantee
232.(1) This section applies if a used motor vehicle is to be sold by 23
auction to someone else ("buyer"). 24
(2) The auctioneer or, if the auctioneer is auctioning the vehicle for a 25
motor dealer, the dealer, must ensure the buyer gains clear title to the motor 26
vehicle at the time property in the vehicle passes to the buyer. 27
Maximum penalty--200 penalty units. 28
s 232 173 s 232
Agents and Motor Dealers
(3) In a proceeding for an offence against subsection (2), it is a defence 1
for the defendant to prove that the defendant took reasonable precautions 2
and exercised proper diligence to ensure subsection (2) is complied with. 3
(4) The auctioneer must, immediately after property in the vehicle passes 4
to the buyer, give the buyer an approved form stating-- 5
(a) particulars about the vehicle, including its odometer reading at the 6
time property passes; and 7
(b) the auctioneer or, if the auctioneer auctioned the vehicle for a 8
motor dealer, the dealer, ensures the buyer gains clear title to the 9
vehicle at the time property passes. 10
Maximum penalty--200 penalty units. 11
(5) The auctioneer must, within 48 hours after property in the vehicle 12
passes to the buyer, give the buyer a security interest certificate for the 13
vehicle issued after property in the vehicle passes. 14
Maximum penalty--200 penalty units. 15
(6) If the security interest certificate for the vehicle shows that a security 16
interest is registered for the vehicle-- 17
(a) the sale is ineffective from the beginning; and 18
(b) the auctioneer or, if the auctioneer is auctioning the vehicle for a 19
motor dealer, the dealer, must do everything in the person's 20
power to return the buyer to the position the buyer was in before 21
the vehicle was purchased including, for example, by paying to 22
the buyer-- 23
(i) the amount the buyer paid for the vehicle; and 24
(ii) any amount paid for vehicle inspection, auctioneer's charges 25
or stamp duty. 26
(7) An amount payable to the buyer under subsection (6)(b) may be 27
recovered as a debt in a court of competent jurisdiction. 28
(8) The auctioneer must ask the buyer to sign an approved form 29
acknowledging receipt of the documents mentioned in subsection (4) 30
and (5). 31
(9) The auctioneer must give the original of the form mentioned in 32
subsection (4) to the buyer and keep a copy of the form. 33
s 233 174 s 234
Agents and Motor Dealers
Maximum penalty--200 penalty units. 1
(10) The auctioneer may charge the buyer an amount for the provision of 2
the security interest certificate, not greater than the relevant amount 3
prescribed under the Motor Vehicles Securities Act 1986 for the issue of the 4
certificate to the auctioneer. 5
Maximum penalty--200 penalty units. 6
(11) A proceeding against an auctioneer or motor dealer for an offence 7
against this section does not affect the civil liability of the auctioneer or 8
dealer. 9
10--Code of conduct 10
Division
of conduct 11
Code
233. A regulation may prescribe a code of conduct about auctioneering 12
practice that may include the following-- 13
(a) setting conduct standards for auctioneers and trainee auctioneers; 14
(b) establishing principles for fair trading; 15
(c) providing for a system of complaint resolution. 16
about conduct 17
Complaints
234.(1) A person aggrieved by the conduct of an auctioneer or trainee 18
auctioneer may complain in writing to the chief executive of the conduct. 19
(2) The chief executive may investigate the complaint and, if satisfied that 20
the code of conduct has been breached, take the action in relation to the 21
conduct allowed under this Act. 22
(3) The investigation may take place and action may be taken even 23
though the person is no longer an auctioneer or trainee auctioneer.111 24
111 Breach of a code of conduct is a ground for starting disciplinary proceedings
under section 438 (Grounds for starting disciplinary proceeding).
s 235 175 s 237
Agents and Motor Dealers
ART 4--STATUTORY WARRANTY 1
P
for pt 4 2
Definitions
235. In this part-- 3
"auctioneer", for the sale of used motor vehicles, includes a person 4
performing the functions of an auctioneer without a licence. 5
"business day", for an auctioneer, means a day, other than Saturday, 6
Sunday or a public holiday, when the auctioneer's place of business is 7
open for business. 8
"warranted vehicle" means a used motor vehicle other than-- 9
(a) a commercial vehicle; or 10
(b) a caravan; or 11
(c) a motor cycle. 12
of "defect" 13
Meaning
236. A warranted vehicle has a "defect" for this part if-- 14
(a) a part of the vehicle does not perform its intended function; or 15
(b) a part of the vehicle has deteriorated to an extent where it can not 16
be reasonably relied on to perform its intended function. 17
of "warranty period" 18
Meaning
237.(1) The "warranty period" of a warranted vehicle starts when the 19
vehicle is sold and ends-- 20
(a) at 5 pm on the first business day 1 month after the day the vehicle 21
is sold; or 22
(b) at the time the vehicle travels 1 000 km after it is sold; 23
whichever happens first. 24
(2) The period mentioned in subsection (1)(a) is extended by 1 day for 25
each day or part of a day a warranted vehicle is not in the possession of the 26
buyer of the vehicle if-- 27
s 238 176 s 239
Agents and Motor Dealers
(a) the buyer of the vehicle has complied with section 243(1);112 and 1
(b) a defect in the vehicle is being repaired by, or at the direction of, 2
the auctioneer who sold the vehicle under the statutory warranty. 3
of pt 4 4
Application
238.(1) This part applies to each warranted vehicle sold by an auctioneer, 5
if the vehicle is auctioned by the auctioneer on the auctioneer's own behalf. 6
(2) However, this part does not apply to the sale of-- 7
(a) a commercial vehicle; or 8
(b) an unregistered motor vehicle that is-- 9
(i) incapable of being registered in Queensland because of its 10
design; or 11
(ii) sold for wrecking or dismantling; or 12
(c) a motor vehicle to a motor dealer; or 13
(d) a motor vehicle sold on consignment, unless the owner of the 14
vehicle is an auctioneer or motor dealer; or 15
(e) another motor vehicle prescribed under a regulation. 16
(3) Also, this part does not apply to the sale of a motor vehicle by the 17
public trustee if the public trustee is acting as agent for another government 18
entity. 19
(4) In this section-- 20
"government entity" has the meaning given by the Public Service Act 21
1996. 22
vehicles without statutory warranty to be identified when 23
Certain
offered for sale 24
239.(1) A motor vehicle mentioned in section 238(2)(b) or (d) may be 25
advertised, or displayed, for sale only if it is advertised, or displayed, for 26
sale as a vehicle that does not have a statutory warranty in the way provided 27
112 Section 243 (Buyer's obligations under statutory warranty)
s 240 177 s 241
Agents and Motor Dealers
under a regulation. 1
Maximum penalty--100 penalty units. 2
(2) If a motor vehicle mentioned in section 238(2)(b) or (d) is being put 3
to auction by an auctioneer, the auctioneer must announce, immediately 4
before the auction, that the vehicle does not have a statutory warranty. 5
Maximum penalty--100 penalty units. 6
to be given notice about statutory warranty 7
Buyer
240.(1) An auctioneer must, immediately after the sale of a warranted 8
vehicle, give the buyer of the vehicle a written notice stating-- 9
(a) the length of the warranty period for the vehicle; and 10
(b) the defects to which the statutory warranty does not apply. 11
Maximum penalty--100 penalty units. 12
(2) An auctioneer must, immediately after the sale of an unwarranted 13
vehicle, give the buyer of the vehicle written notice that the vehicle does not 14
have a statutory warranty. 15
Maximum penalty--100 penalty units. 16
(3) The buyer must acknowledge receipt of a notice given under 17
subsection (1) or (2) by signing a copy of it. 18
(4) In this section-- 19
"unwarranted vehicle" means a used motor vehicle that does not have a 20
statutory warranty. 21
warranty 22
Statutory
241.(1) If an auctioneer sells a warranted vehicle, the auctioneer 23
("seller") warrants that-- 24
(a) the vehicle is free from defects at the time of sale and for the 25
warranty period; and 26
(b) defects in the vehicle reported during the warranty period will be 27
repaired free of charge. 28
(2) In subsection (1), an auctioneer "sells" a warranted vehicle if the 29
s 242 178 s 242
Agents and Motor Dealers
auctioneer-- 1
(a) owns the motor vehicle; and 2
(b) sells the vehicle personally or causes the vehicle to be sold on 3
consignment. 4
(3) In this section-- 5
"defects" does not include defects to which the statutory warranty does not 6
apply. 7
not covered by statutory warranty 8
Defects
242. The following defects in a warranted vehicle are defects to which the 9
statutory warranty does not apply-- 10
(a) a defect in-- 11
(i) a tyre; or 12
(ii) a battery; or 13
(iii) a light; or 14
(iv) a radiator hose; or 15
(v) a vehicle accessory prescribed under a regulation; or 16
(vi) something else prescribed under a regulation; 17
(b) a defect in the vehicle's paintwork or upholstery that should have 18
been apparent on any reasonable inspection of the vehicle before 19
the buyer took delivery; 20
(c) a defect after the buyer takes delivery-- 21
(i) arising from or incidental to any accidental damage to the 22
vehicle; or 23
(ii) arising from the buyer's misuse or negligence; or 24
(iii) in an accessory to the vehicle not fitted to the vehicle when 25
sold to the buyer. 26
s 243 179 s 245
Agents and Motor Dealers
obligations under statutory warranty 1
Buyer's
243.(1) If the buyer of a warranted vehicle believes the vehicle has a 2
defect the seller of the vehicle is obliged to repair under this part, the buyer 3
must-- 4
(a) give the seller written notice of the defect ("defect notice") before 5
the end of the warranty period; and 6
(b) deliver the warranted vehicle-- 7
(i) to the seller to repair the defect; or 8
(ii) to someone else nominated by the seller by signed writing 9
given to the buyer to repair the defect. 10
(2) The buyer is taken to deliver the vehicle and the seller is taken to have 11
possession of the vehicle if the buyer makes reasonable efforts to deliver the 12
vehicle under this section but is unable to do so because the seller refuses to 13
accept delivery of the vehicle. 14
(3) In this section-- 15
"seller" includes someone apparently working for the seller at the seller's 16
place of business. 17
to record details of extension of warranty period 18
Seller
244. The seller must keep a record, in the way prescribed under a 19
regulation, of the day the warranted vehicle is delivered under 20
section 243(1)(b) and the day the vehicle is returned to the buyer. 21
Maximum penalty--100 penalty units. 22
to advise whether defect covered by statutory warranty 23
Seller
245.(1) This section applies if a defect notice is given, and the vehicle is 24
delivered, under section 243. 25
(2) The seller must advise the buyer in writing ("warranty advice") 26
whether the seller accepts or refuses to accept that the defect is a defect to 27
which the statutory warranty applies. 28
(3) If the seller fails to give the warranty advice within 5 business days of 29
receiving the defect notice and delivery of the vehicle, the seller is taken to 30
s 246 180 s 247
Agents and Motor Dealers
have given a warranty advice accepting that the defect is one to which the 1
statutory warranty applies. 2
(4) In this section-- 3
"business day" means a day other than Sunday or a public holiday. 4
obligation to repair defects 5
Seller's
246.(1) If the seller accepts that the defect is one to which the statutory 6
warranty applies, the seller must repair the defect at the seller's expense. 7
(2) The seller must ensure that the defect is repaired within 14 days. 8
Maximum penalty--200 penalty units. 9
(3) If the seller nominates someone else to repair the vehicle, the seller 10
must advise the buyer of the other person's name and the address where the 11
defect is to be repaired. 12
(4) The seller is taken to have repaired the defect if the part of the vehicle 13
affected by the defect is repaired so that it can be reasonably relied on to 14
perform its intended function. 15
(5) The seller's obligation to repair the defect under this section continues 16
even though the seller is no longer performing the functions of an 17
auctioneer. 18
failure to repair 19
Seller's
247.(1) This section applies if the seller has by warranty advice or 20
otherwise-- 21
(a) refused to accept that the defect is one to which the statutory 22
warranty applies; or 23
(b) accepted that the defect is one to which the statutory warranty 24
applies but-- 25
(i) failed to repair a defect within 14 days; or 26
(ii) failed to repair the defect so that the defective part can be 27
reasonably relied on to perform its intended function. 28
(2) The buyer may refer the matter to a small claims tribunal. 29
s 247 181 s 247
Agents and Motor Dealers
(3) A small claims tribunal may, in addition to the orders it is 1
empowered to make under the Small Claims Tribunals Act 1973, 2
section 20,113 make the following orders-- 3
(a) an order that the defect is or is not a defect to which the statutory 4
warranty applies; 5
(b) an order extending the warranty period for the warranted vehicle 6
to a specified date; 7
(c) an order declaring the warranted vehicle is covered by the 8
statutory warranty until a specified date. 9
(4) Also, the tribunal may make an order that the seller pay to the buyer a 10
stated amount the tribunal decides is the reasonable cost of having a defect 11
repaired if-- 12
(a) the seller has, by warranty advice or otherwise, refused to accept 13
that the defect is covered by the statutory warranty; and 14
(b) the buyer has had the defect repaired by another person; and 15
(c) the tribunal decides that the defect was one to which the statutory 16
warranty applied. 17
(5) The small claims tribunal may make an order under subsection (3)(b) 18
or (c) only if it is satisfied-- 19
(a) the vehicle was not able to be used by the buyer for a period 20
during the warranty period; and 21
(b) the period from which the date the order is to be effective to the 22
date the warranty period is to end, and the period during which 23
the vehicle was able to be used by the buyer, taken together, do 24
not exceed 1 month. 25
(6) If, after the matter is heard by a small claims tribunal, an order is 26
made by the tribunal in the buyer's favour and the seller contravenes the 27
order, the contravention is a ground for starting disciplinary proceedings 28
under section 438.114 29
113 Section 20 (Orders of tribunals)
114 Section 438 (Grounds for starting disciplinary proceeding)
s 248 182 s 249
Agents and Motor Dealers
for more than prescribed amount 1
Applications
248.(1) In this section-- 2
"prescribed amount" has the meaning given by the Small Claims 3
Tribunals Act 1973. 4
(2) This section applies to an application if-- 5
(a) a provision of this part provides that an application may be made 6
to a small claims tribunal; and 7
(b) the application seeks the payment of an amount ("application 8
amount") greater than the prescribed amount. 9
(3) In a provision of this part about the application-- 10
(a) a reference to a small claims tribunal is taken to be a reference to a 11
court having jurisdiction for the recovery of a debt equal to the 12
application amount; and 13
(b) the provision applies with all necessary changes, and with any 14
changes prescribed under the regulations, as if the small claims 15
tribunal were the court. 16
PART 5--GENERAL 17
Division 1--Auctioneers 18
office 19
Registered
249. An auctioneer's "registered office" is-- 20
(a) for an auctioneer who is a principal licensee-- 21
(i) the place the auctioneer specifies in the auctioneer's 22
application for an auctioneer's licence as the auctioneer's 23
principal place of business; or 24
(ii) another place notified to the chief executive by the auctioneer 25
in the approved form as the auctioneer's principal place of 26
business; and 27
s 250 183 s 251
Agents and Motor Dealers
(b) for an auctioneer who is an employed licensee-- 1
(i) the place the auctioneer specifies in the auctioneer's 2
application for an auctioneer's licence as the auctioneer's 3
business address; or 4
(ii) another place notified to the chief executive by the auctioneer 5
in the approved form as the auctioneer's business address. 6
must notify chief executive of change in place of business 7
Auctioneer
etc. 8
250.(1) An auctioneer who is a principal licensee must notify the chief 9
executive in the approved form of-- 10
(a) any change in the auctioneer's registered office within 14 days of 11
the change; or 12
(b) the closure of any place where the auctioneer carries on business 13
within 14 days of the closure; or 14
(c) the opening of any place where the auctioneer carries on business 15
within 14 days of the opening. 16
Maximum penalty--200 penalty units. 17
(2) An auctioneer who is an employed licensee must notify the chief 18
executive in the approved form of any change in the auctioneer's registered 19
office within 14 days of the change. 20
Maximum penalty--200 penalty units. 21
of name of licensee 22
Publication
251.(1) An auctioneer who is a principal licensee must display at each 23
place the auctioneer carries on business, in the way that may be prescribed 24
under a regulation-- 25
(a) the auctioneer's name; and 26
(b) if the auctioneer is not the person in charge of the auctioneer's 27
business at the place--the name of the auctioneer who is in 28
charge at the place; and 29
(c) the other particulars that may be prescribed under a regulation. 30
s 252 184 s 253
Agents and Motor Dealers
Maximum penalty--100 penalty units. 1
(2) An auctioneer who conducts an auction must display at the auction, in 2
the way and for the period prescribed under a regulation-- 3
(a) the auctioneer's name; and 4
(b) the other particulars that may be prescribed under a regulation. 5
Maximum penalty--100 penalty units. 6
(3) An auctioneer who is a principal licensee must not publish, or permit 7
to be published, in a newspaper or elsewhere an advertisement for the 8
purpose of the auctioneer's business without stating in the advertisement the 9
particulars that may be prescribed under a regulation. 10
Maximum penalty--100 penalty units. 11
Division 2--Trainee auctioneers 12
office 13
Registered
252. A trainee auctioneer's "registered office" is-- 14
(a) the registered office of the trainee's supervising auctioneer 15
specified by the trainee in the trainee's application for a trainee 16
auctioneer's licence; or 17
(b) the registered office of another supervising auctioneer notified to 18
the chief executive by the trainee in the approved form. 19
auctioneer must notify chief executive of change in registered 20
Trainee
office 21
253. A trainee auctioneer must notify the chief executive in the approved 22
form of any change in the trainee's registered office within 14 days of the 23
change. 24
Maximum penalty--200 penalty units. 25
s 254 185 s 255
Agents and Motor Dealers
ART 6--OFFENCES 1
P
as auctioneer 2
Acting
254.(1) A person must not perform a function that may be done under 3
the authority of an auctioneer's licence unless the person-- 4
(a) holds an auctioneer's licence and the performance of the function 5
is authorised under the person's licence; or 6
(b) is otherwise permitted under an Act to perform the function. 7
Maximum penalty--200 penalty units or 2 years imprisonment. 8
(2) A person must not act as an auctioneer unless-- 9
(a) the person holds an auctioneer's licence and the act is done under 10
the authority of the person's licence; or 11
(b) the act is otherwise permitted under an Act. 12
Maximum penalty--200 penalty units or 2 years imprisonment. 13
(3) Without limiting the ways a person may act as an auctioneer, a 14
person "acts" as an auctioneer if the person-- 15
(a) performs an auction; or 16
(b) advertises or notifies or states that the person performs auctions 17
or is willing to perform auctions; or 18
(c) in any way holds out as being ready to perform auctions. 19
as trainee auctioneer 20
Acting
255. A person must not perform a function that, under this Act, may be 21
done under the authority of a trainee auctioneer's licence unless-- 22
(a) the person holds a trainee auctioneer's licence and the 23
performance of the function is authorised under the person's 24
licence; or 25
(b) the person is otherwise permitted under an Act to perform the 26
function. 27
Maximum penalty--200 penalty units or 2 years imprisonment. 28
s 256 186 s 258
Agents and Motor Dealers
must not act for more than 1 party 1
Auctioneer
256.(1) An auctioneer must not accept appointment to act for more than 2
1 party to a transaction. 3
Maximum penalty--200 penalty units or 1 year's imprisonment. 4
(2) If an auctioneer accepts appointment to act for more than 1 party to a 5
transaction, each appointment is ineffective from the beginning. 6
7
Example of subsection (2)--
8
Accepting appointment to act for both seller and buyer in 1 transaction.
(3) An auctioneer does not contravene subsection (1) and subsection (2) 9
does not apply if the transaction is one involving a livestock sale. 10
auctioneer must not carry on business etc. 11
Trainee
257.(1) A trainee auctioneer must not-- 12
(a) carry on or advertise, notify or state that the trainee carries on the 13
business of an auctioneer; or 14
(b) receive, hold, or deal with an amount from a sale conducted by 15
the trainee under the authority of the trainee's licence. 16
Maximum penalty--200 penalty units or 1 year's imprisonment. 17
(2) Subsection (1)(b) does not apply to a trainee auctioneer if the trainee 18
receives, holds, or deals with the amount as trust monies under a trust 19
account operated by the trainee under the authority of another licence held 20
by the trainee. 21
of licence 22
Production
258. An auctioneer or trainee auctioneer must, if asked by a person with 23
whom the auctioneer or trainee is dealing, produce the auctioneer's or 24
trainee's licence for inspection by the person. 25
Maximum penalty--100 penalty units. 26
s 259 187 s 260
Agents and Motor Dealers
CHAPTER 7--MOTOR DEALERS AND THEIR 1
SALESPERSONS 2
PART 1--MOTOR DEALERS 3
Division 1--Motor dealer's licence 4
a motor dealer's licence authorises 5
What
259.(1) A motor dealer's licence authorises the holder of the licence 6
("motor dealer") to perform the following functions in the carrying on of a 7
business of motor dealing-- 8
(a) to acquire, primarily for resale, used motor vehicles; 9
(b) to acquire and break-up used motor vehicles for sale, as parts; 10
(c) to sell used motor vehicles on consignment as an agent for others 11
for reward; 12
(d) to sell a leased motor vehicle to the lessee under the terms of the 13
lease. 14
(2) A motor dealer may perform the functions as an employee of another 15
motor dealer who carries on the business of motor dealing. 16
(3) In this section-- 17
"business of motor dealing" does not include the business of a financier. 18
Division 2--Motor dealer responsible for acts and omissions of 19
salespersons 20
for acts and omissions of motor salespersons 21
Responsibility
260.(1) A motor dealer who is a principal licensee must take reasonable 22
steps to ensure each motor salesperson employed by the agent is properly 23
supervised, acts only within the scope of the salesperson's authority and 24
complies with this Act. 25
s 261 188 s 262
Agents and Motor Dealers
(2) A motor dealer who is an employed licensee in charge of a motor 1
dealer's business at a place must take reasonable steps to ensure each motor 2
salesperson employed at the place is properly supervised, acts only within 3
the scope of the salesperson's authority and complies with this Act. 4
(3) A motor dealer who fails to meet the dealer's obligations under 5
subsection (1) or (2) is liable to disciplinary action under chapter 11.115 6
ART 2--MOTOR SALESPERSONS 7
P
Division 1--Introduction 8
of "motor salesperson" 9
Meaning
261.(1) A "motor salesperson" is a person employed by a motor dealer 10
to perform any of the functions of a motor dealer. 11
(2) To prevent any doubt, it is declared that a person employed by a 12
motor dealer is not a motor salesperson if the person's duties are only 13
secretarial or clerical. 14
Division 2--Provisions about employment 15
not eligible for employment as motor salespersons 16
Persons
262.(1) Each of the following persons is not eligible to be employed as a 17
motor salesperson-- 18
(a) a person who has not turned 18 years; 19
(b) a person who has been convicted, in Queensland or elsewhere, 20
within the preceding 5 years of a serious offence; 21
(c) a person who is subject to an order of a Magistrates Court or any 22
other court or a regulatory or disciplinary body, either within or 23
115 Chapter 11 (Compliance, discipline and claims against the fund)
s 263 189 s 264
Agents and Motor Dealers
outside Queensland, declaring the person ineligible to be 1
employed as, or not to be entitled to perform the functions of, a 2
motor salesperson; 3
(d) a person whose name is entered in the register of ineligible 4
persons as ineligible to be employed as a motor salesperson; 5
(e) a corporation. 6
(2) A person must not knowingly and falsely represent to someone else 7
that the person is eligible to be employed as a motor salesperson. 8
Maximum penalty for subsection (2)--200 penalty units or 1 year's 9
imprisonment. 10
as motor salespersons 11
Employment
263. A motor dealer must not employ someone ("proposed employee") 12
as a motor salesperson unless the dealer has-- 13
(a) sighted a record, not more than 1 year old, of the proposed 14
employee's criminal history and is satisfied, after sighting the 15
record, that the person is not ineligible under section 262(1)(b) to 16
be employed as a motor salesperson; and 17
(b) taken reasonable action, including action to inspect the register of 18
ineligible persons,116 to satisfy himself or herself that the 19
proposed employee is not ineligible to be employed as a motor 20
salesperson. 21
Maximum penalty--200 penalty units. 22
dealer must give salespersons "employment authority" 23
Motor
264.(1) Immediately after the motor salesperson starts employment, the 24
motor dealer must give the salesperson an employment authority. 25
Maximum penalty--200 penalty units. 26
(2) In this section-- 27
116 The chief executive is required to keep a register of ineligible persons under
section 540.
s 265 190 s 265
Agents and Motor Dealers
"employment authority", for a motor salesperson, means a statement 1
clearly specifying the functions of a motor dealer the salesperson is 2
authorised by the dealer to perform for the dealer during the 3
salesperson's employment by the dealer. 4
may declare person as ineligible person 5
Court
265.(1) A court may declare by order a person to be a person who is not 6
eligible to be employed as a motor salesperson. 7
(2) The court may make an order under subsection (1) only if it is 8
satisfied-- 9
(a) the person has contravened a code of conduct made under part 3, 10
division 5;117 or 11
(b) the person has been convicted of an offence against this Act and, 12
having regard to the nature of the offence, the court considers it is 13
appropriate to make the order; or 14
(c) the person has been convicted of an offence mentioned in 15
section 262(1)(b).118 16
(3) If an order is made under subsection (1), the person's name and the 17
other details that may be prescribed under a regulation must be entered in 18
the register of ineligible persons. 19
(4) The court may make an order subject to stated conditions and may 20
vary or revoke the order at any time. 21
(5) An order may be made-- 22
(a) on conviction of a person of an offence mentioned in 23
subsection (2)(b) or (c)--on the prosecutor's application or by the 24
court on its own initiative; or 25
(b) at any time--on the application of the chief executive. 26
117 Part 3 (Conduct provisions), division 5 (Code of conduct)
118 Section 262 (Persons not eligible for employment as motor salespersons)
s 266 191 s 268
Agents and Motor Dealers
Division 3--Functions of motor salespersons 1
of motor salespersons 2
Functions
266. A motor salesperson for a motor dealer may, as the employee of the 3
motor dealer and subject to the person's employment authority under 4
section 264, perform the functions the motor dealer is authorised to perform 5
under this Act. 6
ART 3--CONDUCT PROVISIONS 7
P
Division 1--Licensee to be in charge of a licensee's business 8
on of business under motor dealer's licence 9
Carrying
267. An individual who carries on the business of a motor dealer with 10
others is not required to hold a motor dealer's licence if-- 11
(a) at least 1 of the persons with whom the individual carries on 12
business is a motor dealer; and 13
(b) the individual does not perform the functions of a motor dealer; 14
and 15
(c) the individual is a suitable person to hold a licence. 16
to be in charge of motor dealer's business at a place 17
Licensee
268.(1) A motor dealer who is an individual and a principal licensee 18
must-- 19
(a) be in charge of the motor dealer's business at the dealer's 20
registered office;119 and 21
(b) if the motor dealer has more than 1 place of business--ensure 22
119 The "registered office" of a motor dealer who is a principal licensee is the
motor dealer's principal place of business. See section 295 (Registered office).
s 269 192 s 269
Agents and Motor Dealers
that at each other place of business a motor dealer who is an 1
individual is in charge of the dealer's business at the place. 2
Maximum penalty--200 penalty units or 1 year's imprisonment. 3
(2) A motor dealer that is a corporation and a principal licensee 4
("corporate dealer") must ensure that-- 5
(a) the individual in charge of the corporate dealer's business at its 6
registered office is a motor dealer; and 7
(b) if the corporate dealer has more than 1 place of business--at each 8
other place of business an individual who is a motor dealer is in 9
charge of the corporate dealer's business at the place. 10
Maximum penalty-- 11
(a) for an individual guilty under chapter 2 of the Criminal Code of 12
an offence or for section 529120--200 penalty units; or 13
(b) for a corporation--1 000 penalty units. 14
(3) To prevent any doubt, it is declared that a motor dealer can not be in 15
charge of a motor dealer's business at more than 1 place. 16
2--Consignment selling 17
Division
on consignment 18
Appointment--sale
269.(1) A motor dealer who is asked by a person ("client") to sell the 19
person's motor vehicle on consignment must not act for the person unless 20
the person first appoints the motor dealer in writing. 21
Maximum penalty--200 penalty units. 22
(2) The appointment may be for the performance of-- 23
(a) a particular service ("single appointment"); or 24
(b) a number of services over a period ("continuing 25
appointment"). 26
(3) The appointment must-- 27
120 Section 529 (Executive officers must ensure corporation complies with Act)
s 269 193 s 269
Agents and Motor Dealers
(a) state the term of the appointment; and 1
(b) state the service to be performed by the motor dealer and how it is 2
to be performed; and 3
(c) state-- 4
(i) in the way prescribed under a regulation--that fees, charges 5
and commission payable for the service are negotiable; and 6
(ii) if commission is expressed as a percentage of the reserve 7
price--the amount of commission expressed in dollars 8
based on the reserve price; and 9
(d) state-- 10
(i) the fees, charges and commission payable for the service; 11
and 12
(ii) the expenses, including advertising expenses and the costs of 13
preparing the vehicle for sale, the motor dealer is authorised 14
to incur in connection with-- 15
(A) for a single appointment--the performance of the 16
service; or 17
(B) for a continuing appointment--the performance of each 18
service or category of service; and 19
(iii) any condition, limitation or restriction on the performance of 20
the service; and 21
(e) state when the fees, charges and commission for the service 22
become payable; and 23
(f) state any other information that may be prescribed under a 24
regulation. 25
Maximum penalty--200 penalty units. 26
(4) A continuing appointment must state-- 27
(a) the date the appointment ends; and 28
(b) the appointment may be revoked at any time by signed writing 29
given to the other party. 30
Maximum penalty--200 penalty units. 31
s 270 194 s 271
Agents and Motor Dealers
(5) Subsection (3)(c)(ii) does not apply to a continuing appointment. 1
(6) The appointment must be signed by the client and the motor dealer or 2
someone authorised or apparently authorised to sign for the dealer. 3
(7) The motor dealer must give a copy of the signed appointment to the 4
client. 5
Maximum penalty--200 penalty units. 6
(8) If an appointment under this section authorises a sale by auction, an 7
appointment under section 207121 is not required. 8
9
Trade-ins
270.(1) A motor dealer must not accept a trade-in from the buyer of a 10
motor vehicle being sold on consignment. 11
Maximum penalty--200 penalty units or 1 year's imprisonment. 12
(2) However, the motor dealer does not contravene subsection (1) if the 13
dealer purchases the property offered as a trade-in as part of a separate 14
transaction between the dealer and the buyer. 15
3--Recovery of commission or reward 16
Division
on commission payable as a percentage 17
Restriction
271.(1) This section applies to a motor dealer who performs a function 18
of selling a motor vehicle on consignment for someone and claims 19
commission worked out as a percentage for the performance of the 20
function. 21
(2) The motor dealer must not claim commission worked out as a 22
percentage of an amount more than the actual sale price of the vehicle. 23
Maximum penalty for subsection (2)--200 penalty units. 24
121 Section 207 (Appointment of auctioneer--general)
s 272 195 s 272
Agents and Motor Dealers
on remedy for commission or reward 1
Restriction
272.(1) A person must not sue for, or recover or retain, a commission, 2
reward or expense for a sale of a motor vehicle on consignment unless-- 3
(a) at the time the function was performed-- 4
(i) the person held a motor dealer's licence; and 5
(ii) the person was authorised under the person's licence to 6
perform the function; and 7
(b) the person has been properly appointed under division 2122 by the 8
person to be charged with the commission, reward or expense. 9
Maximum penalty--200 penalty units. 10
(2) A person must not sue for, or recover or retain, a commission or 11
reward for the performance of a function as a motor dealer that is more 12
than-- 13
(a) the amount of the commission, reward or expense stated in the 14
appointment given under section 269(3);123 or 15
(b) if commission rates for the performance of the function have 16
been prescribed under a regulation--the lesser of the amount 17
stated in the appointment for the performance of the function and 18
the commission allowed under the regulation for the performance 19
of the function. 20
Maximum penalty--200 penalty units. 21
(3) A person must not sue for, or recover or retain, expenses for the 22
performance of a function as a motor dealer that is more than the lesser of 23
the following amounts-- 24
(a) the amount of the expenses stated in the appointment given under 25
section 269(3) and actually expended; 26
(b) if the amount of expenses that may be incurred in relation to the 27
performance of the function is limited under a regulation--the 28
122 Division 2 (Consignment selling)
123 Section 269 (Appointment--sale on consignment)
s 273 196 s 275
Agents and Motor Dealers
amount allowed under the regulation. 1
Maximum penalty--200 penalty units. 2
commission etc. to be repaid 3
Excess
273.(1) This section applies if-- 4
(a) a person is convicted of an offence against section 271(2) 5
or 272;124 and 6
(b) the court before whom the person is convicted is satisfied on the 7
balance of probabilities the person, in connection with the offence, 8
has recovered or retained from someone ("client") for whom the 9
person performed a function an amount to which the person was 10
not entitled. 11
(2) The court must order the person to pay the amount to the client. 12
(3) The order must be made whether or not any penalty is imposed on 13
the conviction. 14
(4) The order may be filed in a court having jurisdiction for the recovery 15
of a debt of an equal amount and enforced as a judgment of that court. 16
4--Interests in property 17
Division
for div 4 18
Definition
274. In this division-- 19
"obtain" includes being in any way concerned in obtaining. 20
interest--options 21
Beneficial
275.(1) A motor dealer commits an offence if any of the following 22
persons obtain from the owner of a used motor vehicle, other than another 23
motor dealer, (the "client") an option to purchase the vehicle in which the 24
dealer or salesperson has a beneficial interest-- 25
124 Section 271 (Restriction on commission payable as a percentage) or 272
(Restriction on remedy for commission or reward)
s 276 197 s 276
Agents and Motor Dealers
(a) the motor dealer; 1
(b) a motor salesperson employed by the dealer. 2
Maximum penalty--200 penalty units or 3 years imprisonment. 3
(2) A motor salesperson employed by the motor dealer commits an 4
offence if the salesperson obtains from the client an option to purchase the 5
vehicle in which the salesperson has a beneficial interest. 6
Maximum penalty--200 penalty units or 3 years imprisonment. 7
(3) A motor dealer must not sell the vehicle if any of the following 8
persons have a beneficial interest in an option to purchase the vehicle-- 9
(a) the motor dealer; 10
(b) a motor salesperson employed by the dealer. 11
Maximum penalty--200 penalty units or 3 years imprisonment. 12
(4) It is a defence to a prosecution under subsection (1)(b) for the motor 13
dealer to show that the dealer was not aware of the beneficial interest held 14
by the salesperson and took reasonable precautions and exercised proper 15
diligence to prevent the contravention. 16
interest--other than options 17
Beneficial
276.(1) This section applies to a motor vehicle placed by a person 18
("client") with a motor dealer for sale on consignment, but does not apply 19
if section 275 applies. 20
(2) The motor dealer commits an offence if any of the following persons 21
obtain a beneficial interest in the vehicle-- 22
(a) the motor dealer; 23
(b) a motor salesperson employed by the dealer. 24
Maximum penalty--200 penalty units or 3 years imprisonment. 25
(3) A motor salesperson employed by the motor dealer commits an 26
offence if the salesperson obtains a beneficial interest in the vehicle. 27
Maximum penalty--200 penalty units or 3 years imprisonment. 28
(4) A person does not contravene subsection (2) or (3) if-- 29
s 277 198 s 277
Agents and Motor Dealers
(a) the motor dealer or motor salesperson-- 1
(i) obtains the client's written acknowledgment that the client-- 2
(A) is aware that the dealer or salesperson is interested in 3
obtaining a beneficial interest in the motor vehicle; and 4
(B) consents to the dealer or salesperson obtaining the 5
interest; and 6
(ii) acts fairly and honestly in relation to the sale; and 7
(b) the motor dealer and the motor salesperson do not accept 8
commission or other reward for the sale; and 9
(c) the client is in substantially as good a position as if the motor 10
vehicle were sold at fair market value. 11
(5) It is a defence to a prosecution under subsection (2)(b) for the motor 12
dealer to show that the dealer was not aware the salesperson obtained the 13
beneficial interest and took reasonable precautions and exercised proper 14
diligence to prevent the contravention. 15
orders court may make 16
Additional
277.(1) If a court convicts a person of an offence against section 275(1), 17
(2) or (3),125 the court may-- 18
(a) by order, declare that the option is ineffective; or 19
(b) if the motor vehicle is sold--order the convicted person to pay to 20
the client an amount the court decides is appropriate having regard 21
to the profits resulting from the person obtaining the option. 22
(2) If a court convicts a person of an offence against section 276(2) 23
or (3), the court may-- 24
(a) by order-- 25
(i) direct that the motor vehicle be retransferred to the client at 26
the motor dealer's expense; and 27
(ii) direct the convicted person to pay to the client the amount of 28
the commission or other reward for the sale; or 29
125 Section 275 (Beneficial interest--options)
s 278 199 s 279
Agents and Motor Dealers
(b) if, for any reason the court considers just, the motor vehicle can 1
not be retransferred--by order, direct the convicted person to pay 2
to the client-- 3
(i) an amount the court decides is appropriate having regard to 4
the profits resulting from the person obtaining a beneficial 5
interest in the motor vehicle; and 6
(ii) the amount of the commission or other reward for the sale. 7
(3) For the purposes of making an order under subsection (1)(b) 8
or (2)(b), the court may-- 9
(a) order that the motor vehicle be valued by a person appointed by 10
the court; and 11
(b) make any order necessary to allow the valuation to be undertaken. 12
(4) If the court makes or refuses to make an order under subsection (1), 13
(2) or (3), an appeal against the order or refusal may be made to a District 14
Court in the same way a penalty imposed may be appealed. 15
(5) The court may also make an order for costs it considers appropriate. 16
(6) An order may be made under this section on the conviction, whether 17
or not a penalty is imposed. 18
5--Code of conduct 19
Division
of conduct 20
Code
278. A regulation may prescribe a code of conduct about motor dealing 21
practice that may include the following-- 22
(a) setting conduct standards for motor dealers and motor 23
salespersons; 24
(b) establishing principles for fair trading; 25
(c) providing for a system of complaint resolution. 26
about conduct 27
Complaints
279.(1) A person aggrieved by the conduct of a motor dealer or motor 28
s 280 200 s 280
Agents and Motor Dealers
salesperson may complain in writing to the chief executive of the conduct. 1
(2) The chief executive may investigate the complaint and, if satisfied that 2
the code of conduct has been breached, take the action in relation to the 3
conduct allowed under this Act.126 4
(3) The investigation may take place and action may be taken even 5
though the person complained about is no longer a motor dealer or motor 6
salesperson. 7
ART 4--GUARANTEE OF TITLE 8
P
of title 9
Guarantee
280.(1) This section applies if a used motor vehicle is to be sold by or for 10
a motor dealer to someone else ("buyer"), other than by auction.127 11
(2) The motor dealer must ensure the buyer gains clear title to the motor 12
vehicle at the time property in the vehicle passes to the buyer. 13
Maximum penalty--200 penalty units. 14
(3) In a proceeding for an offence against subsection (2), it is a defence 15
for the defendant to prove that the defendant took all reasonable steps to 16
ensure subsection (2) is complied with. 17
(4) The motor dealer must, immediately before property in the vehicle is 18
to pass to the buyer-- 19
(a) give the buyer a security interest certificate for the vehicle issued 20
on the day property is to pass; and 21
(b) give the buyer an approved form stating-- 22
(i) particulars about the vehicle, including its odometer reading 23
at the time property is to pass; and 24
126 Breach of a code of conduct is a ground for starting disciplinary proceedings
under section 438 (Grounds for starting disciplinary proceeding).
127 If the sale is by auction, section 232 (Guarantee of title for motor vehicles)
applies.
s 281 201 s 281
Agents and Motor Dealers
(ii) the dealer ensures the buyer gains clear title to the vehicle at 1
the time property is to pass; and 2
(c) ask the buyer to sign an approved form acknowledging receipt of 3
the documents mentioned in paragraphs (a) and (b); and 4
(d) give the original of the form mentioned in paragraph (b) to the 5
buyer and keep a copy of the form. 6
Maximum penalty--200 penalty units. 7
(5) The motor dealer may charge the buyer an amount for the provision 8
of the security interest certificate, not greater than the relevant amount 9
prescribed under the Motor Vehicles Securities Act 1986 for the issue of the 10
certificate to the dealer. 11
Maximum penalty--200 penalty units. 12
(6) A proceeding against a motor dealer for an offence against this 13
section does not affect the civil liability of the dealer. 14
(7) In this section-- 15
"sold" includes sold on consignment. 16
ART 5--STATUTORY WARRANTY 17
P
for pt 5 18
Definitions
281. In this part-- 19
"business day", for a motor dealer, means a day, other than Saturday, 20
Sunday or a public holiday, when the motor dealer's place of business 21
is open for business. 22
"motor dealer", for the sale of used motor vehicles, includes a person 23
carrying on the business of a motor dealer without a licence. 24
"warranted vehicle" means a used motor vehicle other than-- 25
(a) a commercial vehicle; or 26
s 282 202 s 284
Agents and Motor Dealers
(b) a caravan; or 1
(c) a motor cycle. 2
of "defect" 3
Meaning
282. A warranted vehicle has a "defect" for this part if-- 4
(a) a part of the vehicle does not perform its intended function; or 5
(b) a part of the vehicle has deteriorated to an extent where it can not 6
be reasonably relied on to perform its intended function. 7
of "warranty period" 8
Meaning
283.(1) The "warranty period" of a warranted vehicle starts when the 9
vehicle is sold and ends-- 10
(a) at 5 pm on the first business day 1 month after the day the vehicle 11
is sold; or 12
(b) at the time the vehicle travels 1 000 km after it is sold; 13
whichever happens first. 14
(2) The period mentioned in subsection (1)(a) is extended by 1 day for 15
each day or part of a day a warranted vehicle is not in the possession of the 16
buyer of the vehicle if-- 17
(a) the buyer of the vehicle has complied with section 289(1);128 and 18
(b) a defect in the vehicle is being repaired by, or at the direction of, 19
the motor dealer who sold the vehicle under the statutory 20
warranty. 21
of pt 5 22
Application
284.(1) This part applies to each warranted vehicle sold by a motor 23
dealer. 24
(2) However, this part does not apply to the sale of-- 25
128 Section 289 (Buyer's obligations under statutory warranty)
s 285 203 s 286
Agents and Motor Dealers
(a) a commercial vehicle; or 1
(b) an unregistered motor vehicle that is-- 2
(i) incapable of being registered in Queensland because of its 3
design; or 4
(ii) sold for wrecking or dismantling; or 5
(c) a motor vehicle in the possession, or under the control, of the 6
buyer of the vehicle for a continuous period of at least 3 months 7
immediately before the sale to the buyer; or 8
(d) a motor vehicle to a motor dealer; or 9
(e) a motor vehicle sold on consignment, unless the owner of the 10
vehicle is a motor dealer or auctioneer; or 11
(f) another motor vehicle prescribed under a regulation. 12
(3) Also, this part does not apply to the sale of a motor vehicle by the 13
public trustee if the public trustee is acting as agent for another government 14
entity. 15
(4) In this section-- 16
"government entity" has the meaning given by the Public Service Act 17
1996. 18
vehicles without statutory warranty to be identified when 19
Certain
offered for sale 20
285. A motor vehicle mentioned in section 284(2)(b) or (e) may be 21
advertised, or displayed, for sale only if it is advertised, or displayed, for 22
sale as a vehicle that does not have a statutory warranty in the way provided 23
under a regulation. 24
Maximum penalty--100 penalty units. 25
to be given notice about statutory warranty 26
Buyer
286.(1) A motor dealer must, immediately before the sale of a warranted 27
vehicle, give the buyer of the vehicle a written notice stating-- 28
(a) the length of the warranty period for the vehicle; and 29
s 287 204 s 288
Agents and Motor Dealers
(b) the defects to which the statutory warranty does not apply. 1
Maximum penalty--100 penalty units. 2
(2) A motor dealer must, immediately before the sale of an unwarranted 3
vehicle, give the buyer of the vehicle written notice that the vehicle does not 4
have a statutory warranty. 5
Maximum penalty--100 penalty units. 6
(3) The buyer must acknowledge receipt of a notice given under 7
subsection (1) or (2) by signing a copy of it. 8
(4) In this section-- 9
"unwarranted vehicle" means a used motor vehicle that does not have a 10
statutory warranty. 11
warranty 12
Statutory
287.(1) If a motor dealer sells a warranted vehicle, the dealer ("seller") 13
warrants that-- 14
(a) the vehicle is free from defects at the time of sale and for the 15
warranty period; and 16
(b) defects in the vehicle reported during the warranty period will be 17
repaired free of charge. 18
(2) In subsection (1), a motor dealer "sells" a warranted vehicle if the 19
motor dealer-- 20
(a) owns the motor vehicle; and 21
(b) sells the vehicle personally or causes the vehicle to be sold on 22
consignment. 23
(3) In this section-- 24
"defects" does not include defects to which the statutory warranty does not 25
apply. 26
not covered by statutory warranty 27
Defects
288. The following defects in a warranted vehicle are defects to which the 28
statutory warranty does not apply-- 29
s 289 205 s 289
Agents and Motor Dealers
(a) a defect in-- 1
(i) a tyre; or 2
(ii) a battery; or 3
(iii) a light; or 4
(iv) a radiator hose; or 5
(v) a vehicle accessory prescribed under a regulation; or 6
(vi) something else prescribed under a regulation; 7
(b) a defect in the vehicle's paintwork or upholstery that should have 8
been apparent on any reasonable inspection of the vehicle before 9
the buyer took delivery; 10
(c) a defect after the buyer takes delivery-- 11
(i) arising from or incidental to any accidental damage to the 12
vehicle; or 13
(ii) arising from the buyer's misuse or negligence; or 14
(iii) in an accessory to the vehicle not fitted to the vehicle when 15
sold to the buyer. 16
obligations under statutory warranty 17
Buyer's
289.(1) If the buyer of a warranted vehicle believes the vehicle has a 18
defect the seller of the vehicle is obliged to repair under this part, the buyer 19
must-- 20
(a) give the seller written notice of the defect ("defect notice") before 21
the end of the warranty period; and 22
(b) deliver the warranted vehicle-- 23
(i) to the seller to repair the defect; or 24
(ii) to someone else nominated by the seller by signed writing 25
given to the buyer to repair the defect. 26
(2) The buyer is taken to deliver the vehicle and the seller is taken to have 27
possession of the vehicle if the buyer makes reasonable efforts to deliver the 28
vehicle under this section but is unable to do so because the seller refuses to 29
accept delivery of the vehicle. 30
s 290 206 s 292
Agents and Motor Dealers
(3) In this section-- 1
"seller" includes someone apparently working for the seller at the seller's 2
place of business. 3
to record details of extension of warranty period 4
Seller
290. The seller must keep a record, in the way prescribed under a 5
regulation, of the day the warranted vehicle is delivered under 6
section 289(1)(b) and the day the vehicle is returned to the buyer. 7
Maximum penalty--100 penalty units. 8
to advise whether defect covered by statutory warranty 9
Seller
291.(1) This section applies if a defect notice is given, and the vehicle is 10
delivered, under section 289. 11
(2) The seller must advise the buyer in writing ("warranty advice") 12
whether the seller accepts or refuses to accept that the defect is a defect to 13
which the statutory warranty applies. 14
(3) If the seller fails to give the warranty advice within 5 business days of 15
receiving the defect notice and delivery of the vehicle, the seller is taken to 16
have given a warranty advice accepting that the defect is one to which the 17
statutory warranty applies. 18
(4) In this section-- 19
"business day" means a day other than Sunday or a public holiday. 20
obligation to repair defects 21
Seller's
292.(1) If the seller accepts that the defect is one to which the statutory 22
warranty applies, the seller must repair the defect at the seller's expense. 23
(2) The seller must ensure that the defect is repaired within 14 days. 24
Maximum penalty--200 penalty units. 25
(3) If the seller nominates someone else to repair the vehicle, the seller 26
must advise the buyer of the other person's name and the address where the 27
defect is to be repaired. 28
s 293 207 s 293
Agents and Motor Dealers
(4) The seller is taken to have repaired the defect if the part of the vehicle 1
affected by the defect is repaired so that it can be reasonably relied on to 2
perform its intended function. 3
(5) The seller's obligation to repair the defect under this section continues 4
even though the seller is no longer carrying on the business, or performing 5
the functions, of a motor dealer. 6
failure to repair 7
Seller's
293.(1) This section applies if the seller has by warranty advice or 8
otherwise-- 9
(a) refused to accept that the defect is one to which the statutory 10
warranty applies; or 11
(b) accepted that the defect is one to which the statutory warranty 12
applies but-- 13
(i) failed to repair a defect within 14 days; or 14
(ii) failed to repair the defect so that the defective part can be 15
reasonably relied on to perform its intended function. 16
(2) The buyer may refer the matter to a small claims tribunal. 17
(3) A small claims tribunal may, in addition to the orders it is 18
empowered to make under the Small Claims Tribunals Act 1973, 19
section 20,129 make the following orders-- 20
(a) an order that the defect is or is not a defect to which the statutory 21
warranty applies; 22
(b) an order extending the warranty period for the warranted vehicle 23
to a specified date; 24
(c) an order declaring the warranted vehicle is covered by the 25
statutory warranty until a specified date. 26
(4) Also, the tribunal may make an order that the seller pay to the buyer a 27
stated amount the tribunal decides is the reasonable cost of having a defect 28
repaired if-- 29
129 Section 20 (Orders of tribunals)
s 294 208 s 294
Agents and Motor Dealers
(a) if the seller has, by warranty advice or otherwise, refused to 1
accept that the defect is covered by the statutory warranty; and 2
(b) the buyer has had the defect repaired by another person; and 3
(c) the tribunal decides that the defect was one to which the statutory 4
warranty applied. 5
(5) The small claims tribunal may make an order under subsection (3)(b) 6
or (c) only if it is satisfied-- 7
(a) the vehicle was not able to be used by the buyer for a period 8
during the warranty period; and 9
(b) the period from which the date the order is to be effective to the 10
date the warranty period is to end, and the period during which 11
the vehicle was able to be used by the buyer, taken together, do 12
not exceed 1 month. 13
(6) If, after the matter is heard by a small claims tribunal, an order is 14
made by the tribunal in the buyer's favour and the seller contravenes the 15
order, the contravention is a ground for starting disciplinary proceedings 16
under section 438.130 17
for more than prescribed amount 18
Applications
294.(1) In this section-- 19
"prescribed amount" has the meaning given by the Small Claims 20
Tribunals Act 1973. 21
(2) This section applies to an application if-- 22
(a) a provision of this part provides that an application may be made 23
to a small claims tribunal; and 24
(b) the application seeks the payment of an amount ("application 25
amount") greater than the prescribed amount. 26
(3) In a provision of this part about the application-- 27
(a) a reference to a small claims tribunal is taken to be a reference to a 28
court having jurisdiction for the recovery of a debt equal to the 29
130 Section 438 (Grounds for starting disciplinary proceeding)
s 295 209 s 296
Agents and Motor Dealers
application amount; and 1
(b) the provision applies with all necessary changes, and with any 2
changes prescribed under the regulations, as if the small claims 3
tribunal were the court. 4
PART 6--GENERAL 5
office 6
Registered
295. A motor dealer's "registered office" is-- 7
(a) for a motor dealer who is a principal licensee-- 8
(i) the place the dealer specifies in the dealer's application for a 9
motor dealer's licence as the dealer's principal place of 10
business; or 11
(ii) another place notified to the chief executive by the motor 12
dealer in the approved form as the dealer's principal place of 13
business; and 14
(b) for a motor dealer who is an employed licensee-- 15
(i) the place the dealer specifies in the dealer's application for a 16
motor dealer's licence as the dealer's business address; or 17
(ii) another place notified to the chief executive by the dealer in 18
the approved form as the dealer's business address. 19
dealer's premises 20
Motor
296.(1) A motor dealer must not carry on the business of motor dealing 21
unless the motor dealer carries on the business at a place that meets any 22
minimum standard that may be prescribed under a regulation. 23
Maximum penalty--200 penalty units. 24
(2) For subsection (1), a regulation may make different provision for the 25
standard according to the type of motor dealing business being conducted. 26
s 297 210 s 298
Agents and Motor Dealers
dealer must notify chief executive of change in place of business 1
Motor
etc. 2
297.(1) A motor dealer who is a principal licensee must notify the chief 3
executive in the approved form of-- 4
(a) any change in the dealer's registered office within 14 days of the 5
change; or 6
(b) the closure of any place where the dealer carries on business 7
within 14 days of the closure; or 8
(c) the opening of any place where the dealer carries on business 9
within 14 days of the opening. 10
Maximum penalty--200 penalty units. 11
(2) A motor dealer who is an employed licensee must notify the chief 12
executive in the approved form of any change in the dealer's registered 13
office within 14 days of the change. 14
Maximum penalty--200 penalty units. 15
of name of licensee 16
Publication
298.(1) A motor dealer who is a principal licensee must display at each 17
place the motor dealer carries on business, in the way that may be 18
prescribed under a regulation-- 19
(a) the dealer's name; and 20
(b) if the dealer is not the person in charge of the dealer's business at 21
the place--the name of the motor dealer who is in charge at the 22
place; and 23
(c) the other particulars that may be prescribed under a regulation. 24
Maximum penalty--100 penalty units. 25
(2) A motor dealer must not publish in a newspaper or elsewhere an 26
advertisement for the purpose of the dealer's business without stating in the 27
advertisement the particulars that may be prescribed under a regulation. 28
Maximum penalty--100 penalty units. 29
s 299 211 s 300
Agents and Motor Dealers
licensee to keep employment register 1
Principal
299.(1) A motor dealer who is a principal licensee must keep a register 2
of employees ("employment register") at each place where the licensee 3
carries on business. 4
Maximum penalty--200 penalty units. 5
(2) The motor dealer must enter in the employment register-- 6
(a) the name, and the other details that may be prescribed under a 7
regulation, of each person ("employee") who is employed as a 8
motor dealer or motor salesperson at the place; and 9
(b) for each motor salesperson--the functions the employee is 10
authorised to perform for the dealer during the employee's 11
employment by the motor dealer.131 12
Maximum penalty--200 penalty units. 13
(3) The motor dealer must-- 14
(a) enter the details about each employee, and, if the employee is a 15
salesperson, the functions the salesperson is authorised to 16
perform, immediately after the person is employed at the place; 17
and 18
(b) if there is a change in an employee's details or functions--correct 19
the entry in the way prescribed under the regulations immediately 20
after the change happens. 21
Maximum penalty--200 penalty units. 22
(4) The form of the register may be prescribed under a regulation. 23
dealer to keep transactions register 24
Motor
300.(1) A motor dealer must keep, at the dealer's registered office, a 25
register of transactions ("transactions register"). 26
Maximum penalty--200 penalty units or 1 year's imprisonment. 27
131 The motor dealer must give the employee a statement clearly specifying the
employee's functions under section 264 (Motor dealer must give salespersons
"employment authority").
s 301 212 s 302
Agents and Motor Dealers
(2) The motor dealer must enter in the transactions register the particulars 1
that may be prescribed under a regulation of each transaction entered into in 2
the course of business at or through the registered office within 24 hours 3
after the transaction is completed. 4
Maximum penalty--200 penalty units or 1 year's imprisonment. 5
(3) The form of the register may be prescribed under a regulation. 6
(4) In this section-- 7
"motor dealer" means a motor dealer who is a principal licensee or a 8
person in charge of a licensee's business at a place. 9
dealer to obtain statement from seller of vehicle 10
Motor
301.(1) A motor dealer must, when buying a motor vehicle or accepting 11
a motor vehicle for sale on consignment from a person ("seller"), obtain 12
from the seller a statement, signed by the seller, stating the particulars about 13
the seller and the vehicle that may be prescribed under a regulation. 14
Maximum penalty--200 penalty units or 1 year's imprisonment. 15
(2) The motor dealer must retain 1 copy of the statement and give 1 copy 16
to the seller. 17
Maximum penalty--200 penalty units or 1 year's imprisonment. 18
(3) This section does not apply if the seller is-- 19
(a) a financier of the business of the motor dealer; or 20
(b) another motor dealer. 21
dealer to give statement to buyer of vehicle 22
Motor
302.(1) A motor dealer must, when selling a motor vehicle, either 23
personally or on consignment, to a person ("buyer"), give to the buyer a 24
statement, signed by the motor dealer, stating the particulars about the 25
owner of the vehicle and the vehicle that may be prescribed under a 26
regulation. 27
Maximum penalty--200 penalty units. 28
(2) The motor dealer must-- 29
s 303 213 s 304
Agents and Motor Dealers
(a) retain 1 copy of the statement; and 1
(b) give 1 copy of the statement to the buyer immediately after it is 2
signed. 3
Maximum penalty--200 penalty units. 4
(3) Nothing in this section prevents the statement being contained in the 5
contract for sale of the vehicle. 6
of sale 7
Contract
303.(1) A contract for the sale of a motor vehicle by a motor dealer 8
must-- 9
(a) be in writing; and 10
(b) contain the particulars that may be prescribed under a regulation 11
in the way prescribed under the regulation. 12
Maximum penalty--200 penalty units. 13
(2) The motor dealer must give 1 copy of the contract to each other 14
person signing the contract immediately after it is signed. 15
Maximum penalty--200 penalty units. 16
(3) A contract that is not in writing is not enforceable against the buyer of 17
the motor vehicle. 18
ART 7--OFFENCES 19
P
as motor dealer 20
Acting
304.(1) A person must not carry on the business of a motor dealer 21
unless-- 22
(a) the person holds a motor dealer's licence; and 23
(b) the functions performed in the carrying on of business as a motor 24
dealer are authorised under the person's licence. 25
Maximum penalty--200 penalty units or 2 years imprisonment. 26
s 305 214 s 307
Agents and Motor Dealers
(2) Without limiting the ways a person may carry on the business of a 1
motor dealer, a person "carries on business" as a motor dealer if the 2
person-- 3
(a) advertises or notifies or states that the person carries on the 4
business of motor dealing, whether generally or in relation to a 5
single transaction; or 6
(b) in any way holds out as being ready to carry on the business of 7
motor dealing, whether generally or in relation to a single 8
transaction. 9
(3) This section does not apply to a person who carries on a business that 10
is primarily concerned with the hiring out or leasing of motor vehicles. 11
dealer must not act for more than 1 party 12
Motor
305.(1) A motor dealer must not accept appointment to act for more than 13
1 party to a transaction. 14
Maximum penalty--200 penalty units. 15
(2) If an agent accepts appointment to act for more than 1 party to a 16
transaction, each appointment is ineffective from the beginning. 17
18
Example of subsection (2)--
19
Accepting appointment to act for both seller and buyer in 1 transaction.
of licence 20
Production
306. A motor dealer must, if asked by a person with whom the dealer is 21
dealing, produce the dealer's licence for inspection by the person. 22
Maximum penalty--100 penalty units. 23
of ineligible persons in motor dealer business 24
Employment
307.(1) A motor dealer must not employ-- 25
(a) as a motor salesperson--a person the motor dealer knows, or 26
ought to know, is not eligible to be employed as a motor 27
s 308 215 s 308
Agents and Motor Dealers
salesperson under section 262;132 or 1
(b) in any capacity in a motor dealer's business--an ineligible 2
person. 3
Maximum penalty--200 penalty units or 1 year's imprisonment. 4
(2) Subsection (1)(b) does not apply if-- 5
(a) the chief executive approves the person's employment in a stated 6
capacity in writing; and 7
(b) the person is employed in that capacity and complies with any 8
conditions imposed by the chief executive in the approval. 9
(3) A person who is employed as a motor salesperson knowing that he 10
or she is an ineligible person commits an offence. 11
Maximum penalty--200 penalty units or 1 year's imprisonment. 12
(4) A person who is employed in a capacity in a motor dealer's business 13
knowing that he or she is not eligible to be employed in the business in that 14
capacity commits an offence, unless-- 15
(a) the person's employment in that capacity is approved by the chief 16
executive; and 17
(b) the person complies with any conditions imposed by the chief 18
executive in the approval. 19
Maximum penalty--200 penalty units or 1 year's imprisonment. 20
(5) In this section-- 21
"ineligible person" means a person whose name is entered in the register 22
of ineligible persons. 23
offences about employment as motor salespersons 24
Other
308.(1) A principal licensee who is an individual and carries on the 25
business of a motor dealer must not employ, as a motor salesperson for the 26
business, himself or herself or another individual with whom the principal 27
licensee carries on business as a motor dealer. 28
132 Section 262 (Persons not eligible for employment as motor salespersons)
s 309 216 s 309
Agents and Motor Dealers
Maximum penalty--200 penalty units. 1
(2) A principal licensee that is a corporation and carries on business as a 2
motor dealer must not employ an executive officer of the corporation as a 3
motor salesperson for the business. 4
Maximum penalty-- 5
(a) for an individual guilty under chapter 2 of the Criminal Code of 6
an offence or for section 529133--200 penalty units; or 7
(b) for a corporation--1 000 penalty units. 8
CHAPTER 8--COMMERCIAL AGENTS AND 9
THEIR EMPLOYEES 10
ART 1--COMMERCIAL AGENTS 11
P
1--Commercial agent's licence 12
Division
a commercial agent's licence authorises 13
What
309.(1) A commercial agent's licence authorises the holder of the licence 14
("commercial agent") to perform the following functions as an agent for 15
others for reward-- 16
(a) to find, or repossess, for a person any goods or chattels that the 17
person is entitled to repossess under an agreement; 18
(b) to collect, or request payment of, debts; 19
(c) to serve any writ, claim, application, summons or other process. 20
(2) A commercial agent may perform the functions in the carrying on of 21
a business, either alone or with others, or as an employee of someone else. 22
133 Section 529 (Executive officers must ensure corporation complies with Act)
s 310 217 s 311
Agents and Motor Dealers
2--Commercial agent responsible for acts and omissions of 1
Division
employees 2
for acts and omissions of commercial agent (employee) 3
Responsibility
310.(1) A commercial agent who is a principal licensee must take 4
reasonable steps to ensure each commercial agent (employee) employed by 5
the agent is properly supervised, acts only within the scope of the 6
employee's authority and complies with this Act. 7
(2) A commercial agent who is an employed licensee in charge of a 8
commercial agent's business at a place must take reasonable steps to ensure 9
each commercial agent (employee) employed at the place is properly 10
supervised, acts only within the scope of the employee's authority and 11
complies with this Act. 12
(3) A commercial agent who fails to meet the agent's obligations under 13
subsection (1) or (2) is liable to disciplinary action under chapter 11.134 14
PART 2--COMMERCIAL AGENTS (EMPLOYEE) 15
Division 1--Introduction 16
of "commercial agent (employee)" 17
Meaning
311.(1) A "commercial agent (employee)" is a person employed by a 18
commercial agent to perform any of the functions of a commercial agent. 19
(2) To prevent any doubt, it is declared that a person employed by a 20
commercial agent is not a commercial agent (employee) if the person's 21
duties are only secretarial or clerical. 22
134 Chapter 11 (Compliance, discipline and claims against the fund)
s 312 218 s 313
Agents and Motor Dealers
Division 2--Provisions about employment 1
not eligible for employment as commercial agents (employee) 2
Persons
312.(1) Each of the following persons is not eligible to be employed as a 3
commercial agent (employee)-- 4
(a) a person who has not turned 18 years; 5
(b) a person who has been convicted, in Queensland or elsewhere, 6
within the preceding 5 years of a serious offence; 7
(c) a person who is subject to an order of a Magistrates Court or any 8
other court or a regulatory or disciplinary body, either within or 9
outside Queensland, declaring the person ineligible to be 10
employed as, or not entitled to perform the functions of, a 11
commercial agent (employee); 12
(d) a person whose name is entered in the register of ineligible 13
persons as ineligible to be employed as a commercial agent 14
(employee); 15
(e) a corporation. 16
(2) A person must not knowingly and falsely represent to someone else 17
that the person is eligible to be employed as a commercial agent 18
(employee). 19
Maximum penalty for subsection (2)--200 penalty units or 1 year's 20
imprisonment. 21
as commercial agent (employee) 22
Employment
313. A commercial agent must not employ someone ("proposed 23
employee") as a commercial agent (employee) unless the agent has-- 24
(a) sighted a record, not more than 1 year old, of the proposed 25
employee's criminal history and is satisfied, after sighting the 26
record, that the person is not ineligible under section 312(1)(b) to 27
be employed as a commercial agent (employee); and 28
(b) taken reasonable action, including action to inspect the register of 29
ineligible persons, to satisfy himself or herself that the proposed 30
employee is eligible to be employed as a commercial agent 31
s 314 219 s 315
Agents and Motor Dealers
(employee). 1
Maximum penalty--200 penalty units. 2
agent must give commercial agents (employee) 3
Commercial
"employment authority" 4
314.(1) Immediately after the commercial agent (employee) starts 5
employment, the commercial agent must give the employee an employment 6
authority. 7
Maximum penalty--200 penalty units. 8
(2) In this section-- 9
"employment authority", for a commercial agent (employee), means a 10
statement clearly specifying the functions of a commercial agent the 11
employee is authorised by the agent to perform for the agent during the 12
employee's employment by the agent. 13
may declare person as ineligible person 14
Court
315.(1) A court may declare by order a person to be a person who is not 15
eligible to be employed as a commercial agent (employee). 16
(2) The court may make an order under subsection (1) only if it is 17
satisfied-- 18
(a) the person has contravened a code of conduct made under part 3, 19
division 4;135 or 20
(b) the person has been convicted of an offence against this Act and, 21
having regard to the nature of the offence, the court considers it is 22
appropriate to declare the person to be a person who is not eligible 23
to be employed as a commercial agent (employee); or 24
(c) the person has been convicted of an offence mentioned in 25
section 312(1)(b).136 26
135 Part 3 (Conduct provisions) division 4 (Code of conduct)
136 Section 312 (Persons not eligible for employment as commercial agents
(employee))
s 316 220 s 317
Agents and Motor Dealers
(3) If an order is made under subsection (1), the person's name and the 1
other details that may be prescribed under a regulation must be entered in 2
the register of ineligible persons. 3
(4) The court may make an order subject to stated conditions and may 4
vary or revoke the order at any time. 5
(5) An order may be made-- 6
(a) on conviction of a person of an offence mentioned in 7
subsection (2)(b) or (c)--on the prosecutor's application or by the 8
court on its own initiative; or 9
(b) at any time--on the application of the chief executive. 10
3--Functions of commercial agents (employee) 11
Division
of commercial agent (employee) 12
Functions
316. A commercial agent (employee) of a commercial agent may, as an 13
employee of the commercial agent and subject to the person's employment 14
authority under section 314,137 perform the functions the commercial agent 15
is authorised to perform under this Act. 16
ART 3--CONDUCT PROVISIONS 17
P
Division 1--Licensee to be in charge of a licensee's business 18
on of business under commercial agent's licence 19
Carrying
317. An individual who carries on the business of a commercial agent 20
with others is not required to hold a commercial agent's licence if-- 21
(a) at least 1 of the persons with whom the individual carries on 22
137 Section 314 (Commercial agent must give commercial agents (employee)
"employment authority")
s 318 221 s 318
Agents and Motor Dealers
business is a commercial agent; and 1
(b) the individual does not perform the functions of a commercial 2
agent; and 3
(c) the individual is a suitable person to hold a licence. 4
to be in charge of commercial agent's business at a place 5
Licensee
318.(1) A commercial agent who is an individual and a principal licensee 6
must-- 7
(a) be in charge of the agent's business at the agent's registered 8
office;138 and 9
(b) if the commercial agent has more than 1 place of 10
business--ensure that at each other place of business a 11
commercial agent who is an individual is in charge of the agent's 12
business at the place. 13
Maximum penalty--200 penalty units. 14
(2) A commercial agent that is a corporation and a principal licensee 15
("corporate agent") must ensure that-- 16
(a) the individual in charge of the corporate agent's business at its 17
registered office is a commercial agent; and 18
(b) if the corporate agent has more than 1 place of business--at each 19
other place of business an individual who is a commercial agent 20
is in charge of the corporate agent's business at the place. 21
Maximum penalty-- 22
(a) for an individual guilty under chapter 2 of the Criminal Code of 23
an offence or for section 529139--200 penalty units; or 24
(b) for a corporation--1 000 penalty units. 25
138 The "registered office" of a commercial agent who is a principal licensee is the
commercial agent's principal place of business. See section 326 (Registered
office).
139 Section 529 (Executive officers must ensure corporation complies with Act)
s 319 222 s 319
Agents and Motor Dealers
(3) To prevent any doubt, it is declared that a commercial agent can not 1
be in charge of a commercial agent's business at more than 1 place. 2
2--Appointment 3
Division
of commercial agent 4
Appointment
319.(1) A commercial agent who is asked by a person ("client") to 5
perform the function of collecting, or requesting payment of, debts 6
("service") for the client must not act for the client unless the client appoints 7
the agent in writing. 8
Maximum penalty--200 penalty units. 9
(2) The appointment may be for the performance of-- 10
(a) a particular service ("single appointment"); or 11
(b) a number of services over a period ("continuing 12
appointment"). 13
(3) The appointment must-- 14
(a) state the service to be performed by the commercial agent and 15
how it is to be performed; and 16
(b) state-- 17
(i) in the way prescribed under a regulation--that fees, charges 18
and commission payable for the service are negotiable; and 19
(ii) if commission is payable and expressed as a percentage of 20
an amount recovered--the amount of commission 21
expressed in dollars based on the amount; and 22
(c) state-- 23
(i) the fees, charges and commission payable for the services; 24
and 25
(ii) the expenses, including travelling expenses, the commercial 26
agent is authorised to incur in connection with-- 27
(A) for a single appointment--the performance of the 28
service; or 29
s 320 223 s 320
Agents and Motor Dealers
(B) for a continuing appointment--the performance of each 1
service or category of service; and 2
(iii) any condition, limitation or restriction on the performance of 3
the service; and 4
(d) state when the fees, charges and commission for the service 5
become payable; and 6
(e) state any other information that may be prescribed under a 7
regulation. 8
Maximum penalty--200 penalty units. 9
(4) A continuing appointment must state-- 10
(a) the date the appointment ends; and 11
(b) that the appointment may be revoked at any time by signed 12
writing given to the other party. 13
Maximum penalty--200 penalty units. 14
(5) Subsection (3)(b)(ii) does not apply to a continuing appointment. 15
(6) The appointment must be signed by the client and the commercial 16
agent or someone authorised or apparently authorised to sign for the agent. 17
(7) The commercial agent must give a copy of the signed appointment to 18
the client. 19
Maximum penalty--200 penalty units. 20
Division 3--Recovery of commission and expenses 21
on commission payable as a percentage 22
Restriction
320.(1) This section applies to a commercial agent who performs a 23
service of collecting a debt or repossessing or finding goods or a chattel for 24
someone ("client") and claims commission worked out as a percentage of 25
the amount or value of the thing. 26
(2) The commercial agent must not claim commission worked out as a 27
percentage of an amount more than the actual amount collected or value of 28
s 321 224 s 321
Agents and Motor Dealers
the goods or chattel repossessed or found. 1
Maximum penalty for subsection (2)--200 penalty units. 2
on remedy for commission or reward 3
Restriction
321.(1) A person must not sue for, or recover or retain, a commission, 4
reward or expense for the performance of a service as a commercial agent 5
unless-- 6
(a) at the time the service was performed-- 7
(i) the person held a commercial agent's licence; and 8
(ii) the person was authorised under the person's licence to 9
perform the service; and 10
(b) the person has been properly appointed under division 2140 by the 11
person to be charged with the commission, reward or expense. 12
Maximum penalty--200 penalty units. 13
(2) A person must not sue for, or recover or retain, a commission or 14
reward for the performance of a service as a commercial agent that is more 15
than-- 16
(a) the amount of the commission, reward or expense stated in the 17
appointment given under section 319(3);141 or 18
(b) if commission rates for the performance of the function have 19
been prescribed under a regulation--the lesser of the amount 20
stated in the appointment for the performance of the service and 21
the commission allowed under the regulation for the performance 22
of the service. 23
Maximum penalty--200 penalty units. 24
(3) A person must not sue for, or recover or retain, expenses for the 25
performance of a service as a commercial agent that are more than the lesser 26
of the following amounts-- 27
(a) the amount of the expenses stated in the appointment given under 28
140 Division 2 (Appointment)
141 Section 319 (Appointment of commercial agent)
s 322 225 s 323
Agents and Motor Dealers
section 319(3) and actually expended; 1
(b) if the amount of expenses that may be incurred in relation to the 2
performance of the service is limited under a regulation--the 3
amount allowed under the regulation. 4
Maximum penalty--200 penalty units. 5
(4) In this section-- 6
"service" means collecting or requesting payment of debts. 7
commission etc. to be repaid 8
Excess
322.(1) This section applies if-- 9
(a) a person is convicted of an offence against section 320 or 321;142 10
and 11
(b) the court before whom the person is convicted is satisfied on the 12
balance of probabilities the person, in connection with the offence, 13
has recovered or retained from someone ("client") for whom the 14
person performed a function an amount to which the person was 15
not entitled. 16
(2) The court must order the person to pay the amount to the client. 17
(3) The order must be made whether or not any penalty is imposed on 18
the conviction. 19
(4) The order may be filed in a court having jurisdiction for the recovery 20
of a debt of an equal amount and enforced as a judgment of that court. 21
of costs of commercial agent 22
Recovery
323.(1) A person must not recover or attempt to recover from a debtor 23
the costs or expenses of a commercial agent for-- 24
(a) collecting or attempting to collect a debt owed by the debtor; or 25
(b) repossessing or attempting to repossess goods or chattels from 26
the debtor. 27
142 Section 320 (Restriction on commission payable as a percentage) or 321
(Restriction on remedy for commission or reward)
s 324 226 s 325
Agents and Motor Dealers
Maximum penalty--200 penalty units. 1
(2) Subsection (1)(b) does not apply to prevent a person who appoints a 2
commercial agent to repossess goods or chattels from a debtor from 3
recovering the commercial agent's costs and expenses if the person has a 4
right under an agreement or otherwise to recover the costs or expenses. 5
(3) Costs or expenses recovered in contravention of subsection (1) may 6
be recovered by the debtor as a debt in a court of competent jurisdiction. 7
(4) This section applies subject to the Consumer Credit Code. 8
(5) In this section-- 9
"costs" do not include-- 10
(a) stamp duty; or 11
(b) legal costs fixed by, or payable under, rules of court or a court 12
order. 13
"debtor" includes a person from whom goods or chattels may be lawfully 14
repossessed. 15
4--Code of conduct 16
Division
of conduct 17
Code
324. A regulation may prescribe a code of conduct about commercial 18
agency practice that may include the following-- 19
(a) setting conduct standards for commercial agents and commercial 20
agents (employee); 21
(b) establishing principles for fair trading; 22
(c) providing for a system of complaint resolution. 23
about conduct 24
Complaints
325.(1) A person aggrieved by the conduct of a commercial agent or 25
commercial agent (employee) may complain in writing to the chief 26
executive of the conduct. 27
(2) The chief executive may investigate the complaint and, if satisfied that 28
s 326 227 s 327
Agents and Motor Dealers
the code of conduct has been breached, take the action in relation to the 1
conduct allowed under this Act.143 2
(3) The investigation may take place and action may be taken even 3
though the person complained about is no longer a commercial agent or 4
commercial agent (employee). 5
PART 4--GENERAL 6
office 7
Registered
326. A commercial agent's "registered office" is-- 8
(a) for a commercial agent who is a principal licensee-- 9
(i) the place the agent specifies in the agent's application for a 10
commercial agent's licence as the agent's principal place of 11
business; or 12
(ii) another place notified to the chief executive by the agent in 13
the approved form as the agent's principal place of business; 14
and 15
(b) for a commercial agent who is an employed licensee-- 16
(i) the place the agent specifies in the agent's application for a 17
commercial agent's licence as the agent's business address; 18
or 19
(ii) another place notified to the chief executive by the agent in 20
the approved form as the agent's business address. 21
licensee must notify chief executive of change in place of 22
Principal
business etc. 23
327.(1) A commercial agent who is a principal licensee must notify the 24
chief executive in the approved form of-- 25
143 Breach of a code of conduct is a ground for starting disciplinary proceedings
under section 438 (Grounds for starting disciplinary proceeding).
s 328 228 s 329
Agents and Motor Dealers
(a) any change in the agent's registered office within 14 days of the 1
change; or 2
(b) the closure of any place where the agent carries on business 3
within 14 days of the closure; or 4
(c) the opening of any place where the agent carries on business 5
within 14 days of the opening. 6
Maximum penalty--200 penalty units. 7
(2) A commercial agent who is an employed licensee must notify the 8
chief executive in the approved form of any change in the agent's registered 9
office within 14 days of the change. 10
Maximum penalty--200 penalty units. 11
of name of licensee 12
Publication
328.(1) A commercial agent who is a principal licensee must display at 13
each place the commercial agent carries on business, in the way that may be 14
prescribed under a regulation-- 15
(a) the agent's name; and 16
(b) if the agent is not the person in charge of the agent's business at 17
the place--the name of the commercial agent who is in charge of 18
the agent's business at the place; and 19
(c) the other particulars that may be prescribed under a regulation. 20
Maximum penalty--100 penalty units. 21
(2) A commercial agent must not publish in a newspaper or elsewhere an 22
advertisement for the purpose of the agent's business without stating in the 23
advertisement the particulars that may be prescribed under a regulation. 24
Maximum penalty--100 penalty units. 25
licensee must keep employment register 26
Principal
329.(1) A commercial agent who is a principal licensee must keep a 27
register ("employment register") at each place where the licensee carries 28
on business. 29
s 330 229 s 330
Agents and Motor Dealers
Maximum penalty--200 penalty units. 1
(2) The commercial agent must enter in the employment register-- 2
(a) the name, and the other details that may be prescribed under a 3
regulation, of each person ("employee") who is employed as a 4
commercial agent or commercial agent (employee) at the place; 5
and 6
(b) for a commercial agent (employee)--the functions the employee 7
is authorised to perform for the agent during the employee's 8
employment by the commercial agent.144 9
Maximum penalty--200 penalty units. 10
(3) The commercial agent must-- 11
(a) enter the details about each employee, and, if the employee is a 12
commercial agent (employee), the functions the employee is 13
authorised to perform, immediately after the person is employed 14
at the place; and 15
(b) if there is a change in an employee's details or functions--correct 16
the entry in the way prescribed under the regulations immediately 17
after the change happens. 18
Maximum penalty--200 penalty units. 19
(4) The form of the register may be prescribed under a regulation. 20
ART 5--OFFENCES 21
P
as commercial agent 22
Acting
330.(1) A person must not, as an agent for someone else for reward, 23
perform a function that may be done under the authority of a commercial 24
agent's licence unless the person-- 25
144 The commercial agent must give the employee a statement clearly specifying
the employee's functions under section 314 (Commercial agent must give
commercial agents (employee) "employment authority").
s 331 230 s 331
Agents and Motor Dealers
(a) holds a commercial agent's licence and the performance of the 1
function is authorised under the person's licence; or 2
(b) is otherwise permitted under an Act to perform the function. 3
Maximum penalty--200 penalty units or 2 years imprisonment. 4
(2) A person must not act as a commercial agent unless-- 5
(a) the person holds a commercial agent's licence and the act is done 6
under the authority of the person's licence; or 7
(b) the act is otherwise permitted under an Act. 8
Maximum penalty--200 penalty units or 2 years imprisonment. 9
(3) Without limiting the ways a person may act as a commercial agent, a 10
person "acts" as a commercial agent if the person-- 11
(a) performs a function mentioned in section 309(1);145 or 12
(b) advertises, notifies or states that the person-- 13
(i) performs a function mentioned in section 309(1); or 14
(ii) is willing to perform a function mentioned in section 309(1); 15
or 16
(c) in any way holds out as being ready to perform a function 17
mentioned in section 309(1). 18
agent must not act for more than 1 party 19
Commercial
331. A commercial agent who is appointed to perform a function for a 20
person ("client") in relation to another person must not accept appointment 21
from the other person to perform a function while the agent continues to act 22
for the client in relation to the other person. 23
Maximum penalty--200 penalty units. 24
145 Section 309 (What a commercial agent's licence authorises)
s 332 231 s 333
Agents and Motor Dealers
of licence 1
Production
332. A commercial agent must, if asked by a person with whom the 2
agent is dealing, produce the agent's licence for inspection by the person. 3
Maximum penalty--100 penalty units. 4
of ineligible persons in commercial agent's business 5
Employment
333.(1) A commercial agent must not employ-- 6
(a) as a commercial agent (employee)--a person the commercial 7
agent knows, or ought to know, is not eligible to be employed as 8
a commercial agent (employee) under section 312;146 or 9
(b) in any capacity in a commercial agent's business--an ineligible 10
person. 11
Maximum penalty--200 penalty units or 1 year's imprisonment. 12
(2) Subsection (1)(b) does not apply if-- 13
(a) the chief executive approves the person's employment in a stated 14
capacity in writing; and 15
(b) the person is employed in that capacity and complies with any 16
conditions imposed by the chief executive in the approval. 17
(3) A person who is employed as a commercial agent (employee) 18
knowing that he or she is an ineligible person commits an offence. 19
Maximum penalty--200 penalty units or 1 year's imprisonment. 20
(4) A person who is employed in a capacity in a commercial agent's 21
business knowing that he or she is not eligible to be employed in the 22
business in that capacity commits an offence, unless-- 23
(a) the person's employment in that capacity is approved by the chief 24
executive; and 25
(b) the person complies with any conditions imposed by the chief 26
executive in the approval. 27
Maximum penalty--200 penalty units or 1 year's imprisonment. 28
146 Section 312 (Persons not eligible for employment as commercial agents
(employee))
s 334 232 s 335
Agents and Motor Dealers
(5) In this section-- 1
"ineligible person" means a person whose name is entered in the register 2
of ineligible persons. 3
offences about employment as commercial agents (employee) 4
Other
334.(1) A principal licensee who is an individual and carries on the 5
business of a commercial agent must not employ, as a commercial agent 6
(employee) for the business, himself or herself or another individual with 7
whom the principal licensee carries on business as a commercial agent. 8
Maximum penalty--200 penalty units. 9
(2) A principal licensee that is a corporation and carries on business as a 10
commercial agent must not employ an executive officer of a corporation as 11
a commercial agent (employee) for the business. 12
Maximum penalty-- 13
(a) for an individual guilty under chapter 2 of the Criminal Code of 14
an offence or for section 529147--200 penalty units; or 15
(b) for a corporation--1 000 penalty units. 16
not to be used improperly 17
Licence
335.(1) A commercial agent must not-- 18
(a) represent that the person's commercial agent's licence entitles the 19
person to exercise a power the person may not lawfully exercise; 20
or 21
(b) use the person's licence to exercise a power the person may not 22
lawfully exercise. 23
Maximum penalty--200 penalty units or 1 year's imprisonment. 24
(2) In this section-- 25
"represent" includes suggest and imply. 26
"use" includes attempt to use. 27
147 Section 529 (Executive officers must ensure corporation complies with Act)
s 336 233 s 338
Agents and Motor Dealers
entry 1
Unlawful
336. A commercial agent must not, when performing the functions of a 2
commercial agent, enter any premises without lawful authority. 3
Maximum penalty--200 penalty units or 1 year's imprisonment. 4
5
Misrepresentation
337.(1) A commercial agent must not by any false or misleading 6
representation induce a person to enter into an arrangement for the payment 7
of a debt. 8
Maximum penalty--200 penalty units or 2 years imprisonment. 9
(2) In this section-- 10
"induce" includes attempt to induce. 11
commercial agents 12
Impersonating
338.(1) A creditor, when dealing with a person for payment of a debt, 13
must not use any name, description, document or device intended to make 14
the person believe that the person is not dealing directly with the creditor, 15
but with someone acting on the creditor's behalf. 16
Maximum penalty--200 penalty units or 2 years imprisonment. 17
(2) A commercial agent must not give anything to another person to 18
enable the other person to make a third person believe that the third person 19
is not dealing directly with the creditor, but with someone acting on the 20
creditor's behalf. 21
Maximum penalty--200 penalty units or 2 years imprisonment. 22
s 339 234 s 340
Agents and Motor Dealers
HAPTER 9--ACCOUNTS AND FUNDS 1
C
PART 1--TRUST ACCOUNTS 2
Division 1--Application of part 1 3
1 applies only to principal licensees 4
Pt
339. This part applies only to principal licensees. 5
2--Opening trust accounts 6
Division
before opening account 7
Notice
340.(1) Before opening a general trust account or special trust account,148 8
a licensee must give the chief executive written notice stating-- 9
(a) the licensee's intention to open the account; and 10
(b) for a general trust account--the office or branch of an approved 11
financial institution within the State where the licensee proposes 12
to open the account; and 13
(c) for a special trust account--the office or branch of a financial 14
institution within the State where the licensee proposes to open 15
the account; and 16
(d) whether the account is to be a general trust account or special trust 17
account. 18
Maximum penalty--200 penalty units. 19
(2) The chief executive must give the licensee a written acknowledgment 20
of the notice. 21
(3) Before opening the account, the licensee must give the manager or 22
other officer in charge of the institution's office or branch a copy of the 23
148 A special trust account is a trust account created under section 345 in which an
amount is held for investment at the direction of both parties to the sale.
s 341 235 s 342
Agents and Motor Dealers
chief executive's acknowledgment. 1
Maximum penalty--200 penalty units. 2
name 3
Account's
341.(1) A general trust account's name must include the words `general 4
trust account'. 5
Maximum penalty--200 penalty units. 6
(2) A special trust account's name must include the words `special trust 7
account'. 8
Maximum penalty--200 penalty units. 9
of account's opening, closing or name change 10
Notice
342.(1) A licensee must immediately give the chief executive written 11
notice if the licensee-- 12
(a) opens a general trust account or special trust account; or 13
(b) changes the name of a general trust account or special trust 14
account; or 15
(c) closes a general trust account or special trust account. 16
Maximum penalty--200 penalty units. 17
(2) The written notice must include-- 18
(a) the name of the financial institution where the account is or was 19
kept; and 20
(b) the account name; and 21
(c) the identifying number of the financial institution;149 and 22
(d) the trust account number. 23
149 This is commonly referred to as the bank state branch number.
s 343 236 s 345
Agents and Motor Dealers
Division 3--Dealing with trust money 1
Subdivision 1--Payments to trust accounts 2
of sdiv 1 3
Application
343. This subdivision applies if an amount is received by a licensee-- 4
(a) for a transaction; or 5
(b) with a written direction for its use. 6
7
Example of paragraph (b)--
8
An amount received by a real estate agent with a written direction to use it for
9
advertising or marketing by the agent or another person.
with amount on receipt 10
Dealing
344. A licensee must, immediately on receiving an amount-- 11
(a) pay it to the licensee's general trust account; or 12
(b) if section 345(1) applies--invest it under section 345(2). 13
14
Example of paragraph (a)--
15
A licensee who collects an amount of rent for a property owner must pay the
16
amount to the licensee's general trust account before the money can be paid to the
17
owner.
Maximum penalty--200 penalty units or 3 years imprisonment. 18
19
Investments
345.(1) A licensee may invest an amount under subsection (2) if-- 20
(a) the licensee receives the amount for a sale; and 21
(b) the sale is to be completed on a day-- 22
(i) stated in the contract or ascertainable on the day the contract 23
is entered into; and 24
(ii) more than 60 days after the amount is received; and 25
(c) the amount is received with a direction from all parties to the sale 26
s 346 237 s 348
Agents and Motor Dealers
that it be invested. 1
(2) The licensee must pay the amount as required by the direction to a 2
special trust account with a branch of a financial institution within the State 3
operated for the investment of the amount. 4
Maximum penalty for subsection (2)--200 penalty units or 3 years 5
imprisonment. 6
other payments to trust account 7
No
346.(1) A licensee must not pay to a trust account an amount other than 8
an amount that must be paid to the account under section 344 or 345.150 9
Maximum penalty--200 penalty units or 1 year's imprisonment. 10
(2) However, if the licensee receives an amount consisting of trust 11
money and other money ("non-trust money") that can not be divided, the 12
licensee must-- 13
(a) pay the whole amount to the licensee's general trust account; and 14
(b) draw the non-trust money from the account within 14 days after 15
the money becomes available for drawing. 16
17
Example of amount consisting of trust money and non-trust money--
18
A real estate agent receives a single cheque for rent and services provided by the
19
licensee, including, for example, television rental.
Maximum penalty--200 penalty units or 1 year's imprisonment. 20
licence holders 21
Multiple
347. A licensee who holds more than 1 licence is not required to keep a 22
general trust account for each licence. 23
money not available to licensee's creditors 24
Trust
348. An amount paid, or required to be paid, to a trust account under this 25
part can not be-- 26
150 Section 344 (Dealing with amount on receipt) or 345 (Investments)
s 349 238 s 350
Agents and Motor Dealers
(a) used for payment of the debt of a creditor of a licensee; or 1
(b) attached or taken in execution under a court order or process by a 2
creditor. 3
Subdivision 2--Payments from trust accounts 4
payments may be made from trust accounts 5
When
349.(1) An amount paid to a trust account must be kept in the account 6
until it is paid out under this Act. 7
Maximum penalty--200 penalty units or 3 years imprisonment. 8
(2) An amount may be paid from a trust account only in a way permitted 9
under a regulation. 10
Maximum penalty--200 penalty units or 3 years imprisonment. 11
drawings from trust accounts 12
Permitted
350.(1) A licensee may draw an amount from the licensee's trust account 13
to pay the licensee's transaction fee or transaction expenses in relation to a 14
transaction only if-- 15
(a) the amount is drawn against the transaction fund for the 16
transaction; and 17
(b) the licensee is authorised to draw the amount under this section. 18
Maximum penalty--200 penalty units or 3 years imprisonment. 19
(2) The licensee is authorised-- 20
(a) to draw an amount from the transaction fund to pay a transaction 21
expense when the expense becomes payable; and 22
(b) when the transaction is finalised, to draw an amount from the 23
transaction fund that is equal to the difference between-- 24
(i) the balance of the transaction fund; and 25
(ii) the total of the licensee's transaction fee and any outstanding 26
transaction expense; 27
s 351 239 s 351
Agents and Motor Dealers
to pay the person entitled to the amount or in accordance with the 1
person's written direction; and 2
(c) to draw the licensee's transaction fee from the transaction fund 3
when the amount, if any, mentioned in paragraph (b) has been 4
paid and when the transaction is finalised. 5
(3) For subsection (2)(b) or (c), if a dispute about the transaction fund 6
arises, the transaction is not taken to be finalised until the licensee is 7
authorised to pay out the transaction fund under section 353.151 8
(4) The licensee must pay an amount mentioned in subsection (2)(b) to 9
the person entitled to it or in accordance with the person's written 10
direction-- 11
(a) if the person asks, in writing, for the balance--within 14 days 12
after receiving the request; or 13
(b) if the person has not asked, in writing, for the balance--within 14
42 days after the person first had the right to the balance. 15
Maximum penalty--200 penalty units or 3 years imprisonment. 16
(5) In this section-- 17
"transaction expenses" means the expenses the licensee is authorised to 18
incur in connection with the performance of the licensee's functions 19
for a transaction. 20
"transaction fee" means the fees, charges and commission payable for the 21
performance of the licensee's functions for a transaction. 22
"transaction fund" means the amount held in a licensee's trust account for 23
the transaction. 24
Subdivision 3--Other trust account obligations 25
to clients 26
Accounting
351.(1) A licensee must account to the person ("client") who appoints 27
the licensee to perform a function for all amounts received for a transaction. 28
151 Section 353 (When amount in dispute may be paid)
s 352 240 s 353
Agents and Motor Dealers
Maximum penalty--200 penalty units or 3 years imprisonment. 1
(2) The account must be in writing and state-- 2
(a) the amounts received for the transaction; and 3
(b) how the amounts were or are to be paid out. 4
Maximum penalty--200 penalty units or 3 years imprisonment. 5
(3) The licensee must give the client the account-- 6
(a) if the client asks, in writing, for the account--within 14 days after 7
receiving the request; or 8
(b) if the client has not asked, in writing, for the account--within 9
42 days after the transaction is finalised. 10
Maximum penalty--200 penalty units or 3 years imprisonment. 11
4--Disputes about trust money 12
Division
of div 4 13
Application
352.(1) This division applies if-- 14
(a) a licensee holds a transaction fund for a transaction under 15
section 350;152 and 16
(b) before the transaction fund is paid out under section 350, the 17
licensee receives written notice from a party to the transaction that 18
ownership of the fund or part of the fund is in dispute (the 19
"amount in dispute"). 20
(2) In subsection (1)-- 21
"party", to a transaction, does not include a licensee acting for a party to the 22
transaction. 23
amount in dispute may be paid 24
When
353. The licensee must not pay out the amount in dispute unless the 25
152 Section 350 (Permitted drawings from trust accounts)
s 354 241 s 355
Agents and Motor Dealers
licensee-- 1
(a) receives written notice-- 2
(i) from all parties to the transaction stating the person who is 3
entitled to the amount in dispute; or 4
(ii) a legal proceeding has been started to decide who is entitled 5
to the amount in dispute; or 6
(b) pays the amount under section 355(3).153 7
Maximum penalty--200 penalty units or 3 years imprisonment. 8
amount must be paid if notice given 9
Where
354. The licensee must pay the amount in dispute immediately-- 10
(a) if notice under 353(a)(i) is received--to the person stated to be 11
entitled to the amount or in accordance with the person's 12
direction; or 13
(b) if notice under 353(a)(ii) is received--to the court in which the 14
proceeding was started. 15
Maximum penalty--200 penalty units or 3 years imprisonment. 16
with amount if no notice 17
Dealing
355.(1) This section applies if the licensee does not receive a notice under 18
section 353154 within 30 days after receiving notice of the dispute. 19
(2) The licensee must within 7 days after the end of the 30 day period 20
give all parties to the transaction notice that-- 21
(a) after 30 days the licensee will pay the amount in dispute to a 22
stated person who the licensee believes is entitled to receive it if 23
the licensee has not received a notice under section 353; or 24
(b) the licensee can not decide who is entitled to the amount and is 25
keeping it in the licensee's trust account until the licensee receives 26
153 Section 355 (Dealing with amount if no notice)
154 Section 353 (When amount in dispute may be paid)
s 356 242 s 356
Agents and Motor Dealers
notice under section 353. 1
Maximum penalty--200 penalty units or 3 years imprisonment. 2
(3) If the licensee gives a notice under subsection (2)(a), the licensee may 3
pay the amount to the person stated in the notice if the licensee does not 4
receive a notice under section 353 within 30 days. 5
ART 2--AUDIT REQUIREMENTS 6
P
Division 1--Interpretation 7
of "auditor" 8
Meaning
356. An "auditor" means-- 9
(a) generally--a person ("qualified auditor") who is-- 10
(i) a member of the Institute of Chartered Accountants in 11
Australia and holds a current certificate of public practice 12
issued by the institute; or 13
(ii) a member of the Australian Society of Certified Practising 14
Accountants and holds a current certificate of public practice 15
issued by the society; or 16
(iii) a registered company auditor under the Corporations Law; 17
or 18
(b) for a stated licensee--a person ("approved auditor") approved 19
by the chief executive under section 359155 to audit the licensee's 20
trust accounts. 21
155 Section 359 (Chief executive to consider application)
s 357 243 s 359
Agents and Motor Dealers
2--Provisions about auditors 1
Division
licensee must appoint auditor 2
Principal
357.(1) A principal licensee who is required under this Act to keep a trust 3
account must appoint an auditor to audit the trust accounts kept or to be kept 4
by the licensee under this Act. 5
Maximum penalty--200 penalty units or 1 year's imprisonment. 6
(2) If the licensee is unable to appoint a qualified auditor to audit the 7
licensee's trust accounts, the chief executive, at the request of the licensee, 8
may approve another person to audit the licensee's trust accounts. 9
for approval as auditor 10
Application
358.(1) A person may apply to the chief executive to be an approved 11
auditor for a stated licensee. 12
(2) The application must-- 13
(a) be made in the approved form to the chief executive; and 14
(b) establish the person's qualifications to be an approved auditor; 15
and 16
(c) be accompanied by-- 17
(i) a request by the stated licensee that the person be approved 18
as the auditor to audit the licensee's trust accounts; and 19
(ii) evidence that the person holds current professional 20
indemnity insurance in an amount not less than the amount 21
prescribed under a regulation. 22
executive to consider application 23
Chief
359.(1) The chief executive must consider the application and approve, or 24
refuse to approve, the person as an approved auditor for a stated licensee. 25
(2) The chief executive may approve the person as an approved auditor 26
only if the chief executive is satisfied the person-- 27
(a) is a suitable person to be an approved auditor; and 28
s 360 244 s 360
Agents and Motor Dealers
(b) has at least a diploma level tertiary qualification in accounting 1
with an auditing component; and 2
(c) holds current professional indemnity insurance in an amount not 3
less than the amount prescribed under a regulation. 4
(3) The chief executive may approve a person who meets the 5
requirements of subsections (2)(a) and (c) but does not have the minimum 6
qualification mentioned in subsection (2)(b) if the chief executive is 7
satisfied-- 8
(a) the person resides in a remote locality; and 9
(b) the person has the necessary skills or experience and a sufficient 10
knowledge of this Act to perform the functions of an approved 11
auditor; and 12
(c) there is no qualified auditor available to serve the needs of the 13
locality. 14
(4) If the chief executive refuses to approve the person as an approved 15
auditor, the chief executive must give the person an information notice 16
about the decision within 14 days of the decision being made. 17
(5) A person is not a "suitable person" for this section if the person-- 18
(a) is an undischarged bankrupt; or 19
(b) is a person who has been convicted of an indictable offence 20
involving dishonesty; or 21
(c) has been found guilty of professional misconduct or 22
unprofessional conduct or had the person's practising certificate 23
revoked by an entity mentioned in section 356(a)(i) or (ii).156 24
approval of person as approved auditor ends 25
When
360. The approval of a person as an approved auditor ends if-- 26
(a) the person's appointment to audit the trust accounts of the 27
licensee for whom the person is the approved auditor ends; or 28
(b) the person is no longer a suitable person under section 359; or 29
156 Section 356 (Meaning of "auditor")
s 361 245 s 362
Agents and Motor Dealers
(c) the person no longer holds current professional indemnity 1
insurance in an amount not less than the amount prescribed under 2
a regulation; or 3
(d) the chief executive withdraws approval of the person as the 4
approved auditor for the licensee under section 363.157 5
and evidence of auditor's appointment 6
Notice
361.(1) This section applies if-- 7
(a) a principal licensee appoints an auditor; and 8
(b) the licensee has not already advised the chief executive of the 9
auditor's name and address under section 26.158 10
(2) The licensee must within 1 month of the appointment give the chief 11
executive-- 12
(a) written notice of the auditor's name and address; and 13
(b) evidence that the auditor has accepted the appointment. 14
Maximum penalty for subsection (2)--200 penalty units. 15
to be taken if auditor's appointment ends 16
Steps
362.(1) If a licensee's auditor resigns or the licensee ends the auditor's 17
appointment, both the auditor and the licensee must immediately notify the 18
chief executive of the resignation or ending of the appointment, and of the 19
reasons for it. 20
(2) An auditor or licensee who is required to give the chief executive 21
notice under subsection (1) and fails to give the notice commits an offence. 22
Maximum penalty--200 penalty units. 23
(3) The licensee must appoint another auditor and, within 1 month after 24
the resignation or ending of the appointment mentioned in subsection (1) 25
takes effect, give the chief executive-- 26
157 Section 363 (Chief executive may withdraw approval as approved auditor)
158 Section 26 (Applicant intending to carry on business to advise name of auditor)
s 363 246 s 363
Agents and Motor Dealers
(a) written notice of the auditor's name and address; and 1
(b) evidence that the auditor has accepted the appointment. 2
Maximum penalty--200 penalty units. 3
(4) If a licensee's auditor dies, the licensee must-- 4
(a) as soon as the licensee becomes aware of the death--notify the 5
chief executive of the death; and 6
(b) within 1 month after becoming aware of the death, appoint 7
another auditor and give the chief executive-- 8
(i) written notice of the auditor's name and address; and 9
(ii) evidence that the auditor has accepted the appointment. 10
Maximum penalty--200 penalty units. 11
executive may withdraw approval as approved auditor 12
Chief
363.(1) The chief executive may withdraw the approval of a person as an 13
approved auditor if the chief executive is satisfied that the person-- 14
(a) has not audited the licensee's trust accounts in accordance with 15
generally accepted standards of professional competency; or 16
(b) has failed to detect or report material irregularities in the operation 17
of the licensee's trust accounts; or 18
(c) has not properly performed the person's functions under this Act. 19
(2) The chief executive must give the person written notice-- 20
(a) stating that the chief executive proposes to withdraw the person's 21
approval as an approved auditor for a stated licensee on a ground 22
mentioned in subsection (1); and 23
(b) outlining the facts and circumstances forming the basis for the 24
ground; and 25
(c) inviting the person to show, within a stated time of at least 26
21 days, why the approval should not be withdrawn. 27
(3) If the chief executive still considers the ground exists after 28
considering any written representations within the stated time, the chief 29
executive must-- 30
s 364 247 s 365
Agents and Motor Dealers
(a) withdraw the person's approval; and 1
(b) give an information notice to the person and the licensee for 2
whom the person is the approved auditor. 3
executive may make information available to supervisory bodies 4
Chief
364.(1) The chief executive may report a matter about a qualified auditor 5
to the Australian Securities Commission or an entity mentioned in 6
section 356(a)(i) or (ii)159 of which the auditor is a member if the chief 7
executive believes, on reasonable grounds, that the auditor-- 8
(a) has not audited a licensee's trust accounts in accordance with 9
generally accepted standards of professional competency; or 10
(b) has failed to detect or report material irregularities in the operation 11
of a licensee's trust accounts; or 12
(c) has not properly performed the auditors's functions under this 13
Act. 14
(2) The chief executive may make any information in the chief 15
executive's possession available to the commission or entity for the 16
purposes of any investigation conducted by the commission or entity. 17
Division 3--Audit of trust accounts 18
for div 3 19
Definitions
365. In this division-- 20
"audit month", for a licensee's licence, means-- 21
(a) the eighth month after the month in which the licence was first 22
issued to the licensee and the same month in each subsequent 23
year; or 24
(b) another month specified by the chief executive by written notice 25
given to the licensee. 26
159 Section 356 (Meaning of "auditor")
s 366 248 s 367
Agents and Motor Dealers
1
Example of paragraph (a)--
2
If a licensee's licence was first issued to the licensee in January, the audit month
3
for the licensee's licence is September.
"audit period" means-- 4
(a) the 12 month period in each year ending on the last day of the 5
audit month; or 6
(b) another period decided by the chief executive, either generally, by 7
gazette notice, or by written notice given to a licensee. 8
"audit report", for a licensee, means a report from the licensee's auditor 9
under section 372(2).160 10
"trust account" means a general trust account or a special trust account. 11
trust accounts must be audited 12
What
366.(1) A licensee's trust accounts must be audited for each audit period 13
for which the licensee carried on business as a licensee and operated a trust 14
account. 15
(2) A licensee's trust accounts need not be audited for an audit period if 16
the licensee gives the chief executive a statutory declaration that the licensee 17
did not operate a trust account during the period. 18
for audit 19
Time
367.(1) This section applies to each audit period for which a licensee's 20
trust accounts must be audited. 21
(2) The licensee must, within 4 months after the last day of the audit 22
month in each year or the extended period allowed by the chief executive 23
under subsection (3)-- 24
(a) have the licensee's trust accounts for the last audit period audited 25
by the licensee's auditor; and 26
160 Section 372 (Audit reports)
s 368 249 s 369
Agents and Motor Dealers
(b) file the auditor's signed original audit report161 with the chief 1
executive. 2
Maximum penalty--200 penalty units or 2 years imprisonment. 3
(3) The chief executive may extend the time mentioned in subsection (2) 4
if an auditor or licensee applies in writing to the chief executive. 5
(4) An application must state the grounds on which the extension is 6
sought. 7
(5) If a licensee is charged with an offence relating to a failure to file an 8
audit report, it is immaterial that the contravention happened without the 9
licensee's authority or contrary to the licensee's instructions. 10
11
Auditors--functions
368.(1) An auditor has the following functions under this division-- 12
(a) to inspect and audit, in each audit period, the trust accounts of 13
each licensee by whom the auditor is engaged; 14
(b) to make an audit report for the licensee for the audit period; 15
(c) if the licensee is a licensee for the whole of the audit period--to 16
make 2 unannounced examinations of the licensee's trust 17
accounts during the audit period; 18
(d) if the licensee is a licensee for less than the whole audit period, 19
but more than 6 months of the period--to make 1 unannounced 20
examination of the licensee's trust accounts during the audit 21
period. 22
(2) An auditor must not make an unannounced examination of a 23
licensee's trust accounts within 2 months of the last day of the audit period 24
or another unannounced examination. 25
advice to chief executive 26
Auditor's
369. An auditor must immediately give written notice to the chief 27
executive if the auditor-- 28
161 The auditor must give the licensee a signed original audit report under
section 372 (Audit reports).
s 370 250 s 371
Agents and Motor Dealers
(a) can not report that a trust account has been satisfactorily kept 1
under this Act; or 2
(b) finds, on an unannounced examination of a licensee's trust 3
accounts, an irregularity in relation to an account that ought to be 4
brought to the chief executive's notice. 5
Maximum penalty--200 penalty units or 1 year's imprisonment. 6
may ask licensee to produce other accounts 7
Auditor
370.(1) This section applies if an auditor considers, to enable the auditor 8
to decide whether a licensee's trust accounts have been satisfactorily kept 9
under this Act, it is necessary-- 10
(a) to examine a general account of the licensee; or 11
(b) to be given information about the accounts. 12
(2) The auditor may ask the licensee to produce the general account or 13
give the information. 14
(3) If the licensee refuses, the auditor must immediately give written 15
notice to the chief executive. 16
Maximum penalty for subsection (3)--200 penalty units or 1 year's 17
imprisonment. 18
on ceasing to be licensee or carrying on business 19
Audit
371.(1) This section applies if-- 20
(a) a licensee must keep trust accounts; and 21
(b) the licensee stops being a principal licensee. 22
(2) The licensee must, within 2 months after the licensee stops being a 23
principal licensee-- 24
(a) have the licensee's trust accounts audited by the licensee's auditor 25
for the period-- 26
(i) starting on the day immediately after the end of the period 27
covered by the last audit of the trust accounts or, if the trusts 28
accounts have not previously been audited, the day on which 29
s 372 251 s 372
Agents and Motor Dealers
the licensee was first required to keep trust accounts; and 1
(ii) ending on the day the licensee stops being a principal 2
licensee; and 3
(b) file the auditor's signed original audit report with the chief 4
executive. 5
Maximum penalty for subsection (2)--200 penalty units or 2 years 6
imprisonment. 7
reports 8
Audit
372.(1) An auditor who audits a licensee's trust accounts must give the 9
licensee an original signed audit report. 10
Maximum penalty--200 penalty units or 1 year's imprisonment. 11
(2) The auditor must include the following in the report-- 12
(a) the audit period for which the report is made; 13
(b) the name and number of each trust account; 14
(c) the name of the financial institution, the office or branch of the 15
institution where each trust account was kept and the identifying 16
number of the office or branch; 17
(d) the licensee's name and-- 18
(i) if the licensee was a corporation--the name of each of its 19
licensed directors during the audit period; and 20
(ii) if the licensee carried on business under a registered 21
business name--the business name and the names of any 22
persons with whom the licensee carried on the business; 23
(e) each place where the licensee carried on business; 24
(f) a statement about whether each trust account has been 25
satisfactorily kept under this Act; 26
(g) a statement specifying the day and result of each unannounced 27
examination for the audit period under section 368(1);162 28
162 Section 368 (Auditors--functions)
s 373 252 s 373
Agents and Motor Dealers
(h) a statement about whether the auditor has audited the licensee's 1
general account; 2
(i) a statement about whether any trust account has been overdrawn; 3
(j) a statement about whether a trust creditor's ledger account has 4
been overdrawn; 5
(k) a statement about whether for each month during the audit 6
period-- 7
(i) each trust account cash book was reconciled with the bank 8
balance and trust ledger; and 9
(ii) an analysis was made showing the name of each person for 10
whom an amount was held and the amount held for each 11
person; 12
(l) the serial numbers of the trust receipts used during the audit 13
period and the unused trust receipts produced to the auditor; 14
(m) particulars of the amounts held in trust for more than 3 months 15
by the licensee at the last day of the audit period; 16
(n) a statement that each trust account cash book has been reconciled 17
with the bank balance of the trust account at the last day of the 18
audit period; 19
(o) a statement about anything else about any trust account the auditor 20
considers should be reported to the chief executive. 21
ART 3--FIDELITY GUARANTEE FUND 22
P
guarantee fund 23
Fidelity
373.(1) The fidelity guarantee fund (the "fund") is established. 24
(2) The fund consists of-- 25
(a) fund contributions and levies on licensees under this Act; and 26
(b) interest from the investment of the fund; and 27
(c) other amounts that may be paid to the fund. 28
s 374 253 s 374
Agents and Motor Dealers
(3) The fund forms part of the trust and special funds established under 1
the Financial Administration and Audit Act 1977. 2
fund may be applied 3
How
374.(1) The following amounts are payable from the fund-- 4
(a) the amount of all claims allowed against the fund; 5
(b) the legal costs of the chief executive or an agents and motor 6
dealers board in performing functions under this Act; 7
(c) costs of an appeal under chapter 15163 ordered against the chief 8
executive or an agents and motor dealers board; 9
(d) the costs and expenses of an agents and motor dealers board; 10
(e) the costs of an inquiry the chief executive may carry out or 11
authorise for this Act; 12
(f) refunds of contributions made by licensees or their personal 13
representatives; 14
(g) other amounts payable from the fund under this Act. 15
(2) The Treasurer may transfer an amount from the fund to the 16
consolidated fund if the Minister decides the amount is to be applied-- 17
(a) to pay the costs of administering this Act, including the 18
remuneration of the department's public service employees; or 19
(b) to fund-- 20
(i) vocational education and training and scholarship programs, 21
for licensees or their employees; or 22
(ii) community education programs about the business 23
operations of the persons mentioned in subparagraph (i); or 24
(iii) housing assistance programs; or 25
(iv) a program that, in the Minister's opinion, helps the 26
administration of this Act. 27
(3) However, an amount may be transferred from the fund only if the 28
163 Chapter 15 (Appeals)
s 375 254 s 376
Agents and Motor Dealers
Minister is satisfied that on the transfer the fund, after allowing for all 1
known liabilities, will be more than $5 000 000 or a higher amount 2
prescribed under a regulation. 3
(4) An amount transferred to the consolidated fund must be applied 4
under subsection (2). 5
levy 6
Additional
375.(1) This section applies if the chief executive considers the amount in 7
the fund is not enough to pay the amounts payable from the fund. 8
(2) The chief executive may, with the Minister's approval, impose on 9
each licensee who is liable to contribute to the fund an additional levy not 10
more than the amount prescribed under a regulation. 11
(3) The levy must not be imposed more than once each year on each 12
licence held by a licensee. 13
(4) The chief executive must notify the imposition of the levy by gazette 14
notice. 15
(5) The levy is payable by the day and in the way stated in the gazette 16
notice. 17
(6) However, the chief executive may extend the time mentioned in 18
subsection (5) to pay the whole or part of the levy if the licensee applies in 19
writing to the chief executive. 20
(7) An application must state the grounds on which the extension is 21
sought. 22
(8) If a licensee does not pay the levy in the way or within the time stated 23
in the gazette notice or within the further time allowed by the chief 24
executive, the chief executive may recover it as a debt in a court of 25
competent jurisdiction. 26
(9) A licensee is not taken to be unlicensed merely because the licensee 27
has not paid the levy. 28
with financial institutions 29
Agreements
376.(1) The chief executive may enter into an agreement for the State 30
with a financial institution about the keeping of general trust accounts by 31
s 377 255 s 377
Agents and Motor Dealers
licensees. 1
(2) The chief executive may enter into an agreement only if-- 2
(a) the Minister approves the chief executive entering into the 3
agreement; and 4
(b) the financial institution is prescribed under a regulation as a 5
financial institution to which this section applies. 6
(3) The agreement may provide for the following things-- 7
(a) payment of interest on the whole or part of amounts held in 8
licensees' general trust accounts to the fund; 9
(b) informing the chief executive of amounts held in licensees' 10
general trust accounts; 11
(c) auditing licensees' general trust accounts; 12
(d) other things concerning licensees' general trust accounts. 13
(4) A financial institution may pay interest to the fund under an 14
agreement. 15
on amounts in the fund 16
Interest
377.(1) The Treasurer must pay interest on amounts in the fund. 17
(2) Interest must be calculated on the minimum daily balance at a rate 18
fixed by the Treasurer not less than the minimum rate that may be 19
prescribed under a regulation. 20
s 378 256 s 378
Agents and Motor Dealers
ART 4--FREEZING TRUST ACCOUNTS AND 1
P
APPOINTING RECEIVERS AND SPECIAL 2
INVESTIGATORS 3
Division 1--Definitions 4
for pt 4 5
Definitions
378. In this part-- 6
"account" means-- 7
(a) a trust account in a licensee's name with a financial institution; or 8
(b) an account in the licensee's name or in which the licensee has an 9
interest with a financial institution; or 10
(c) another account to which trust money is deposited. 11
"defalcation" means stealing, embezzlement, omitting to account, 12
misappropriation or misapplication, or other act about property 13
punishable by imprisonment. 14
"holder", of an account, means the licensee or other person authorised to 15
operate on the account. 16
"licensee" includes a former licensee and the personal representative of a 17
deceased licensee. 18
"money" includes-- 19
(a) an instrument for the payment of an amount if the instrument 20
may be paid to a financial institution; and 21
(b) security for money if title to the security is transferable by 22
delivery. 23
"property", for a licensee, means-- 24
(a) trust property received by the licensee that has not been given to 25
the person entitled to it or someone else under the person's 26
direction or according to law; or 27
(b) property that, except for the appointment of a receiver, would be 28
receivable for another person by the licensee after the receiver's 29
s 379 257 s 379
Agents and Motor Dealers
appointment; or 1
(c) computer hardware, software and discs, ledgers, books of 2
account, vouchers, records, deeds, files and other documents. 3
"receivership property", for a receiver, see section 387(2).164 4
"trust money" includes an amount that was, or ought, under this Act, to 5
have been, deposited in a trust account required to be kept by a 6
licensee. 7
Division 2--Freezing licensees' accounts 8
executive may freeze licensee's accounts in particular cases 9
Chief
379.(1) The chief executive may give a direction under subsection (2) if it 10
appears to the chief executive that any of the following persons has, or may 11
have, stolen or misappropriated or misapplied trust money-- 12
(a) a licensee; 13
(b) the person in charge of a licensee's business at a place; 14
(c) an employee of a licensee. 15
(2) The chief executive may direct, by signed writing, that-- 16
(a) if a claim has been made against the fund concerning the trust 17
money--all or part of the amount to the credit of a stated account 18
be paid to the chief executive; or 19
(b) an amount must not be drawn from a stated account other than 20
with the chief executive's written approval; or 21
(c) a stated account may be operated only under stated conditions. 22
(3) The direction must-- 23
(a) be given to each holder of the account and the financial institution 24
where the account is kept; and 25
(b) state the account to which it relates; and 26
(c) if it is a direction under subsection (2)(c)--state the conditions 27
164 Section 387 (How receivers are appointed)
s 380 258 s 380
Agents and Motor Dealers
under which the account may be operated. 1
(4) If an amount is paid to the chief executive under subsection (2)(a), the 2
chief executive must pay the amount to the fund. 3
institution must comply with direction 4
Financial
380.(1) After the direction has been given to a financial institution, and 5
until it is withdrawn, the financial institution must not-- 6
(a) pay a cheque or other instrument drawn on the account stated in 7
the direction unless the cheque or instrument is also signed by the 8
chief executive; or 9
(b) give effect to another transaction on the account that is not 10
authorised because of the direction. 11
Maximum penalty-- 12
(a) for an individual guilty under chapter 2 of the Criminal Code of 13
an offence or for section 529 165--200 penalty units or 1 year's 14
imprisonment; or 15
(b) for a corporation--1 000 penalty units. 16
(2) Subsection (1) applies whether or not a copy of the direction has been 17
given to anyone else. 18
(3) For section 379(2)(b), the chief executive's signature on the cheque 19
or other instrument is sufficient evidence of the chief executive's approval 20
to draw an amount from the account to honour the cheque or other 21
instrument. 22
(4) A manager or principal officer in charge of an office or branch of the 23
financial institution where the account is kept, or another officer of the 24
financial institution, must not knowingly contravene this section. 25
Maximum penalty--200 penalty units or 1 year's imprisonment. 26
(5) A person to whom a direction is given does not incur a civil liability 27
to another because the person complies with the direction. 28
165 Section 529 (Executive officers must ensure corporation complies with Act)
s 381 259 s 383
Agents and Motor Dealers
not to be operated unless chief executive allows 1
Account
381. After the direction has been given to the holder of an account, and 2
until it is withdrawn, the holder must not sign a cheque or other instrument 3
drawn on an account stated in the direction unless the cheque or other 4
instrument has first been signed by the chief executive or a person 5
authorised by the chief executive to sign the cheque or instrument. 6
Maximum penalty--200 penalty units or 2 years imprisonment. 7
executive may operate account 8
Chief
382.(1) This section applies if a holder of an account is unwilling to 9
operate an account stated in a direction under section 379.166 10
(2) The chief executive or a person authorised in writing by the chief 11
executive ("authorised person") may operate on the account. 12
(3) A statutory declaration made by the chief executive or authorised 13
person to the effect that the account holder is unwilling to operate on the 14
account is sufficient evidence to the licensee's financial institution of that 15
fact. 16
of direction 17
Withdrawal
383.(1) The chief executive may withdraw a direction given under 18
section 379167 at any time. 19
(2) If the direction is withdrawn, the chief executive must immediately 20
give all persons who were given the direction a notice that the direction has 21
been withdrawn. 22
(3) A direction stops having effect when it is withdrawn. 23
166 Section 379 (Chief executive may freeze licensee's accounts in certain cases)
167 Section 379 (Chief executive may freeze licensee's accounts in certain cases)
s 384 260 s 384
Agents and Motor Dealers
3--Receivers 1
Division
Subdivision 1--Appointment 2
receiver may be appointed 3
When
384.(1) If the chief executive believes a defalcation has, or may have, 4
been committed in relation to a licensee's trust account, the chief executive 5
may appoint a receiver if-- 6
(a) the licensee consents to the appointment; or 7
(b) the chief executive-- 8
(i) gives the licensee written notice-- 9
(A) stating that the chief executive proposes to appoint a 10
receiver on the ground that a defalcation has, or may 11
have, been committed in relation to the licensee's trust 12
account; and 13
(B) outlining the facts and circumstances forming the basis 14
for the ground; and 15
(C) inviting the licensee to show, within a stated time of at 16
least 21 days, why the appointment should not be 17
made; and 18
(ii) after considering any written representations given within the 19
stated time, still considers the ground exists.168 20
(2) The chief executive may immediately appoint a receiver if the chief 21
executive believes a person can not obtain payment or delivery of property 22
held for the person by a licensee because of-- 23
(a) the licensee's mental or physical infirmity; or 24
(b) the licensee's death; or 25
168 Under the Judicial Review Act 1991, part 4, a person aggrieved by an
administrative decision of the chief executive can ask the chief executive to
give a written statement of reasons for the decision, if they are not given. See
the Acts Interpretation Act 1954, section 27B (Content of statement of reasons for
decision) for what the chief executive must set out in those reasons.
s 385 261 s 387
Agents and Motor Dealers
(c) the abandonment of the licensee's business; or 1
(d) the licensee's disqualification from holding a licence; or 2
(e) the cancellation of the licensee's licence; or 3
(f) a refusal to renew the licensee's licence; or 4
(g) the lapse of the licensee's licence. 5
receiver may be appointed over 6
Property
385. A receiver may be appointed over property-- 7
(a) held by a licensee; or 8
(b) held by another person for a licensee; or 9
(c) recoverable by a licensee; or 10
(d) if a licensee is dead--that may be recoverable by the licensee's 11
personal representative. 12
may be appointed 13
Who
386.(1) The chief executive may appoint a person as a receiver only if 14
satisfied the person is appropriately qualified to perform a receiver's 15
functions. 16
(2) A person may be appointed as a receiver and a special investigator169 17
over the same property. 18
receivers are appointed 19
How
387.(1) The chief executive must appoint a receiver by signed notice. 20
(2) The notice must state the property ("receivership property") over 21
which the receiver is appointed. 22
(3) The appointment takes effect when the notice is signed. 23
(4) The chief executive must give a copy of the notice to the licensee and 24
the receiver as soon as practicable after the signing of the notice. 25
169 See section 410 (Appointment of special investigator)
s 388 262 s 390
Agents and Motor Dealers
Subdivision 2--Receiver's functions and powers 1
2
Receivers--functions
388. A receiver appointed under this division has the following 3
functions-- 4
(a) to take possession of receivership property; 5
(b) to manage receivership property; 6
(c) to receive claims against receivership property; 7
(d) if the licensee held receivership property in trust-- 8
(i) to identify the person or persons who have the right to it; and 9
(ii) to distribute it under this division; 10
(e) to identify any defalcation that has, or may have, been committed; 11
(f) to report to the chief executive about a receivership. 12
information 13
Requiring
389.(1) A receiver may ask a person to give the receiver information the 14
receiver reasonably requires about receivership property. 15
(2) A person must give the receiver the information, unless the person 16
has a reasonable excuse. 17
Maximum penalty--200 penalty units or 1 year's imprisonment. 18
(3) It is a reasonable excuse for a person not to give information to a 19
receiver if doing so might tend to incriminate the person. 20
of receivership property 21
Possession
390.(1) A receiver may take or enter into possession of receivership 22
property. 23
(2) As soon as practicable after taking or entering into possession of 24
receivership property, the receiver must give a receipt for it to the person 25
from whom the property was taken or who held possession of the property. 26
(3) The receiver must allow a person who would be entitled to the 27
s 391 263 s 392
Agents and Motor Dealers
receivership property if it were not in the receiver's possession-- 1
(a) to inspect it; or 2
(b) if it is a document--to take a copy of it. 3
(4) The receiver must return property that the receiver is satisfied is not 4
required for the receivership to the licensee or other person who has the 5
right to it. 6
(5) The receiver may take or enter into possession of property under 7
subsection (1) despite a lien or other security over it claimed by any person. 8
(6) However, the taking of or entry into possession does not affect the 9
person's claim to the lien or other security against a person other than the 10
receiver. 11
for possession of receivership property 12
Orders
391.(1) This section applies if-- 13
(a) a receiver requires a person in possession of receivership property 14
to give possession of it to the receiver; and 15
(b) the person does not comply with the requirement. 16
(2) The receiver may apply to a court having jurisdiction for the recovery 17
of debts up to the amount or value of the property concerned for an order 18
for possession of the property. 19
orders 20
Enforcing
392.(1) This section applies if-- 21
(a) a court makes an order for possession of property against a 22
person; and 23
(b) the person has been given a copy of the order; and 24
(c) the person has not complied with the order. 25
(2) The court may make an order authorising a police officer, or the 26
receiver or another person and a police officer-- 27
(a) to enter stated premises or another place occupied by the person 28
and search for the property; and 29
s 393 264 s 394
Agents and Motor Dealers
(b) to seize the property and move it to a place the receiver considers 1
appropriate. 2
(3) The court may also make another order it considers appropriate. 3
withdrawing, destroying or concealing property 4
Improperly
393. A person must not-- 5
(a) withdraw an amount or make a payment from an account with 6
intent to defeat a receiver's functions; or 7
(b) destroy, conceal, move from 1 place to another place, give to 8
another or place under another's control property over which a 9
receiver has been appointed. 10
Maximum penalty--200 penalty units or 2 years imprisonment. 11
with receivership property 12
Dealing
394.(1) A receiver may deal with receivership property in the same way 13
as the licensee may have dealt with the property. 14
(2) Without limiting subsection (1), the receiver may do the following-- 15
(a) if the licensee had no general trust account--open a general trust 16
account; 17
(b) claim or receive a debt owing to the licensee in connection with 18
the property; 19
(c) start or defend a proceeding concerning the property on the 20
licensee's behalf; 21
(d) engage a legal representative or other agent to give advice; 22
(e) engage employees or agents to assist the receiver in carrying out 23
the receiver's functions; 24
(f) if the licensee had power to sell or require the sale of the 25
property--sell or require the sale of the property. 26
s 395 265 s 398
Agents and Motor Dealers
receivers 1
Obstructing
395. A person must not obstruct a receiver in the performance of the 2
receiver's functions or the exercise of the receiver's powers under this 3
subdivision. 4
Maximum penalty--200 penalty units or 1 year's imprisonment. 5
Subdivision 3--Distributing receivership property 6
to claimants against receivership property 7
Notice
396.(1) The receiver must give notice to persons who may have a claim 8
against receivership property. 9
(2) The notice may be given-- 10
(a) by post; or 11
(b) by newspaper advertisement; or 12
(c) in another way the receiver thinks will reasonably bring the notice 13
to the attention of persons who may have a claim to the property. 14
(3) A notice must state a time, at least 1 month after the notice is given, 15
for particulars and grounds of a claim against the property to be given to the 16
receiver. 17
to documents 18
Access
397.(1) The receiver must give a person who wishes to claim against 19
receivership property reasonable access to documents held by the receiver to 20
allow particulars and grounds of the claim to be given. 21
(2) The receiver must give the access free of charge. 22
claims 23
Deciding
398.(1) The receiver must consider all claims against receivership 24
property and decide whether each claim is allowable. 25
(2) The receiver may refuse to allow the person's claim against the 26
property if-- 27
s 399 266 s 399
Agents and Motor Dealers
(a) the person was given notice under section 396;170 and 1
(b) particulars and grounds of the claim were not given within the 2
time stated in the notice. 3
(3) The receiver must refuse to allow a person's claim against the 4
property if the receiver is satisfied that the person does not have a lawful 5
claim against the property. 6
(4) If the receiver refuses a claim under subsection (2) or (3), the receiver 7
must give the person written notice of the refusal. 8
of claims 9
Payment
399.(1) This section applies if-- 10
(a) a receiver has given notice under section 396(1);171 and 11
(b) the time for giving particulars and grounds of claims has ended; 12
and 13
(c) the receiver has considered the claims against receivership 14
property. 15
(2) The receiver may pay a claim allowed by the receiver only if the 16
property is enough to pay all claims allowed by the receiver. 17
(3) If the property is not enough to pay all of the allowed claims-- 18
(a) the receiver may pay any part of the property that consists of 19
money to the chief executive; and 20
(b) must give a report to the chief executive-- 21
(i) stating that the receiver can not pay all of the claims allowed 22
by the receiver; and 23
(ii) identifying the claims against the property that the receiver 24
considers should be paid from the fund. 25
(4) Money paid to the chief executive under subsection (3) must be-- 26
(a) paid to the fund; and 27
170 Section 396 (Notice to claimants against receivership property)
171 Section 396 (Notice to claimants against receivership property)
s 400 267 s 401
Agents and Motor Dealers
(b) paid from the fund under section 400(3)(b). 1
(5) In this section-- 2
"claim" does not include a claim by the licensee. 3
not dealt with by receiver 4
Money
400.(1) This section applies to receivership property consisting of money 5
in the receiver's possession. 6
(2) The receiver must give the money to the chief executive if-- 7
(a) the receiver has not dealt with it under this division; and 8
(b) the chief executive asks for it. 9
(3) Money given to the chief executive under subsection (2) must be paid 10
to the fund and be paid from the fund in the following order-- 11
(a) to reimburse claims paid from the fund in relation to the licensee; 12
(b) to pay unsatisfied claims against the fund in relation to the 13
licensee; 14
(c) to pay to the receiver the amounts payable from the fund under 15
sections 401 and 402; 16
(d) to pay claims by the licensee against the money. 17
4--Receivers' remuneration and costs 18
Subdivision
and costs 19
Remuneration
401.(1) The chief executive must pay the following to the receiver from 20
the fund-- 21
(a) remuneration for the receiver's services; 22
(b) costs incurred by the receiver in the course of the receivership. 23
(2) The remuneration and costs under subsection (1) include the 24
receiver's remuneration and costs for giving access to documents under 25
s 402 268 s 404
Agents and Motor Dealers
section 397.172 1
(3) If the chief executive and the receiver can not agree on the amount of 2
the receiver's remuneration and costs, the Minister may, on the chief 3
executive's or receiver's application, decide the amount. 4
liabilities may be paid from the fund 5
Receiver's
402.(1) This section applies if the receiver is or may be liable for an act 6
or omission done in good faith in the performance of the receiver's 7
functions or the exercise of the receiver's powers. 8
(2) The chief executive may reimburse the receiver from the fund for 9
costs, charges or damages the receiver incurs or may incur in relation to the 10
liability. 11
of remuneration, costs or liabilities 12
Recovery
403.(1) The following persons are jointly and severally liable to 13
reimburse the fund for an amount paid under section 401 or 402173-- 14
(a) the licensee; 15
(b) if the licensee is a corporation--the executive officers of the 16
corporation when the event in relation to which the chief executive 17
appointed the receiver happened. 18
(2) The chief executive may recover an amount liable to be reimbursed 19
under subsection (1) as a debt in a court of competent jurisdiction. 20
(3) The chief executive must pay an amount the chief executive recovers 21
under this section to the fund. 22
may review remuneration, costs or liability 23
Court
404.(1) This section applies if-- 24
(a) a person is or may become liable to reimburse, or has 25
172 Section 397 (Access to documents)
173 Section 401 (Remuneration and costs) or 402 (Receiver's liabilities may be paid
from the fund)
s 405 269 s 405
Agents and Motor Dealers
reimbursed, the fund for an amount paid under section 401 1
or 402;174 and 2
(b) the person satisfies a court in which proceedings to recover the 3
amount are taken or another court of competent jurisdiction that 4
the amount was excessive. 5
(2) The court may-- 6
(a) take an account between the chief executive and the receiver; and 7
(b) fix the amount fairly payable under section 401 or 402; and 8
(c) relieve the person from being liable to pay or from having paid 9
more than the amount fixed under paragraph (b). 10
(3) A proceeding to obtain relief under this section must be started within 11
3 months after the person is given notice of the person's liability to 12
reimburse the amount. 13
(4) However-- 14
(a) if the person is deceased--the person's personal representative 15
may start a proceeding for relief within 12 months after notice of 16
the person's liability to reimburse the amount is given; or 17
(b) if the person dies within the 3 month period--the person's 18
personal representative may start a proceeding for relief within 19
12 months after the date of the person's death. 20
5--Ending receivership 21
Subdivision
receiver's appointment 22
Ending
405. A receiver's appointment ends if-- 23
(a) the receiver resigns by signed notice given to the chief executive; 24
or 25
(b) the receiver or licensee applies to the chief executive to end the 26
appointment and the chief executive approves the application; or 27
174 Section 401 (Remuneration and costs) or 402 (Receiver's liabilities may be paid
from the fund)
s 406 270 s 406
Agents and Motor Dealers
(c) the receiver dies; or 1
(d) the chief executive ends the appointment by signed notice given to 2
the receiver. 3
with receivership property when appointment ends 4
Dealing
406.(1) This section applies to receivership property if-- 5
(a) the receiver's appointment ends; and 6
(b) the chief executive has not asked for the property under 7
section 400.175 8
(2) If, within 14 days after the end of the receiver's appointment, the 9
chief executive appoints another person ("new receiver")176 to be the 10
receiver in the former receiver's place, the former receiver must-- 11
(a) give the property to the new receiver as soon as reasonably 12
practicable; or 13
(b) if the chief executive gives the former receiver a direction about 14
how to deal with the property--comply with the direction. 15
Maximum penalty--200 penalty units or 1 year's imprisonment. 16
(3) If a new receiver is not appointed within the 14 days, the former 17
receiver must give the property to the licensee or other person who has the 18
right to it. 19
Maximum penalty--200 penalty units or 1 year's imprisonment. 20
(4) However, the chief executive may direct the former receiver to 21
destroy or give to the chief executive any part of the property consisting of 22
documents if the documents have not been given to the person entitled to 23
them. 24
(5) The former receiver must comply with a direction under 25
subsection (4). 26
175 Section 400 (Money not dealt with by receiver)
176 For the chief executive's power to appoint a new receiver, see the Acts
Interpretation Act 1954, section 25 (Powers of appointment imply certain
incidental powers).
s 407 271 s 410
Agents and Motor Dealers
Maximum penalty for subsection (5)--200 penalty units or 1 year's 1
imprisonment. 2
by receiver 3
Returns
407.(1) A receiver must give the chief executive a report about the 4
receivership when the chief executive directs. 5
(2) The receiver must also give the chief executive a report when the 6
receiver's appointment ends. 7
(3) The report must contain the information reasonably required by the 8
chief executive. 9
(4) The receiver is not entitled to be paid for the receivership until reports 10
required to be given under this section are given to the chief executive. 11
6--Miscellaneous 12
Subdivision
not personal representative 13
Receiver
408. To prevent any doubt, a receiver of a deceased licensee, in 14
performing the receiver's functions, is not to be taken to be the licensee's 15
personal representative. 16
property free from execution or attachment 17
Receivership
409. Receivership property can not be levied on or taken or attached 18
under a judgment. 19
4--Special investigators 20
Division
of special investigator 21
Appointment
410.(1) The chief executive may by written notice appoint a special 22
investigator over a licensee's trust account if the chief executive considers 23
the trust account has not been kept as required under this Act. 24
(2) The notice must state-- 25
s 411 272 s 412
Agents and Motor Dealers
(a) the licensee's name and the trust account; and 1
(b) the terms on which the special investigator is appointed; and 2
(c) the special investigator's functions and powers. 3
(3) A copy of the notice must be given to the licensee. 4
(4) The chief executive may appoint a person as a special investigator 5
only if the chief executive is satisfied the person is appropriately qualified to 6
perform a special investigator's functions. 7
(5) An inspector may be appointed as a special investigator. 8
investigators--functions 9
Special
411. A special investigator appointed under this division may perform 10
any of the following functions stated in the investigator's notice of 11
appointment-- 12
(a) inspecting the licensee's trust accounts and records that relate to 13
the trust accounts; 14
(b) preparing or constructing incomplete trust account records; 15
(c) performing other accounting tasks to establish the state of the 16
trust account; 17
(d) reporting to the chief executive under section 414;177 18
(e) another function that may be prescribed under a regulation. 19
investigators--powers 20
Special
412.(1) The chief executive may, by signed notice, give a special 21
investigator any or all of an inspector's powers under chapter 12, part 2.178 22
(2) A special investigator's powers under subsection (1) end when the 23
special investigator's appointment ends. 24
177 Section 414 (Reports to chief executive)
178 Chapter 12 (Enforcement), part 2 (Inspectors' powers)
s 413 273 s 417
Agents and Motor Dealers
must comply with special investigator's lawful requests 1
Licensee
413.(1) The licensee must comply with a special investigator's lawful 2
requests, unless the licensee has a reasonable excuse. 3
Maximum penalty--200 penalty units or 1 year's imprisonment. 4
(2) The special investigator must advise the chief executive of any failure 5
by the licensee to comply with a request. 6
to chief executive 7
Reports
414.(1) A special investigator must report to the chief executive at the 8
time, and in the way, required by the chief executive. 9
(2) However, if the special investigator considers sufficient grounds exist 10
to appoint a receiver, the special investigator must advise the chief executive 11
immediately of the grounds. 12
and costs 13
Remuneration
415.(1) A special investigator has the right to the remuneration and costs 14
provided for in the special investigator's notice of appointment. 15
(2) The remuneration and costs must be paid from the fund. 16
(3) Subsection (1) does not apply to a special investigator who is an 17
inspector. 18
investigator's liabilities may be paid from the fund 19
Special
416.(1) This section applies if the special investigator is or may be liable 20
for an act or omission done in good faith in the performance of the special 21
investigator's functions or the exercise of the receiver's powers. 22
(2) The chief executive may reimburse the special investigator out of the 23
fund for costs, charges or damages the special investigator incurs or may 24
incur in relation to the liability. 25
of remuneration, costs or liabilities 26
Recovery
417.(1) The following persons are jointly and severally liable to 27
s 418 274 s 418
Agents and Motor Dealers
reimburse the fund for any amount paid under section 415 or 416179-- 1
(a) the licensee; 2
(b) if the licensee is a corporation--the executive officers of the 3
corporation when the event in relation to which the chief executive 4
appointed the special investigator happened. 5
(2) The chief executive may recover an amount liable to be reimbursed 6
under subsection (1) as a debt in a court of competent jurisdiction. 7
(3) The chief executive must pay an amount the chief executive recovers 8
under this section to the fund. 9
may review remuneration, costs or liabilities 10
Court
418.(1) This section applies if-- 11
(a) a person is or may become liable to reimburse, or has 12
reimbursed, the fund for an amount paid under section 415 13
or 416;180 and 14
(b) the person satisfies a court in which proceedings to recover the 15
amount are taken or another court of competent jurisdiction that 16
the amount was excessive. 17
(2) The court may-- 18
(a) take an account between the chief executive and the special 19
investigator; and 20
(b) fix the amount fairly payable under section 415 or 416; and 21
(c) relieve the person from being liable to pay or from having paid 22
more than the amount fixed under paragraph (b). 23
(3) A proceeding to obtain relief under this section must be started within 24
3 months after the person is given notice of the person's liability to 25
reimburse the fund. 26
179 Section 415 (Remuneration and costs) or 416 (Special investigator's liabilities
may be paid from the fund)
180 Section 415 (Remuneration and costs) or 416 (Special investigator's liabilities
may be paid from the fund)
s 419 275 s 420
Agents and Motor Dealers
(4) However-- 1
(a) if the person is deceased--the person's personal representative 2
may start a proceeding for relief within 12 months after notice of 3
the person's liability to reimburse the amount is given; or 4
(b) if the person dies within the 3 month period--the person's 5
personal representative may start a proceeding for relief within 6
12 months after the date of the person's death. 7
special investigator's appointment 8
Ending
419. A special investigator's appointment ends if-- 9
(a) the investigator resigns by signed notice given to the chief 10
executive; or 11
(b) the investigator dies; or 12
(c) the investigator's notice of appointment states the appointment 13
ends when an event happens and the event happens; or 14
(d) the chief executive ends the appointment by signed notice given to 15
the investigator. 16
HAPTER 10--AGENTS AND MOTOR DEALERS 17
C
BOARD 18
PART 1--AGENTS AND MOTOR DEALERS BOARD 19
PANEL AND MEMBERS 20
of agents and motor dealers board panel members 21
Appointment
420.(1) The Governor in Council may, by gazette notice, appoint 22
individuals as members of a panel of agents and motor dealers board 23
members (the "agents and motor dealers board's panel"). 24
(2) The agents and motor dealers board's panel is to consist of the 25
s 421 276 s 422
Agents and Motor Dealers
following panel members-- 1
(a) at least 2 members who are restricted letting agents; 2
(b) at least 2 members who are real estate agents; 3
(c) at least 2 members who, in the Minister's opinion, represent 4
pastoral house interests; 5
(d) at least 2 members who are auctioneers; 6
(e) at least 2 members who are motor dealers; 7
(f) at least 2 members who are commercial agents; 8
(g) at least 2 members who are lawyers; 9
(h) at least 2 members who, in the Minister's opinion, represent 10
consumer interests. 11
(3) A member may be a public service officer, other than the chief 12
executive or a public service officer involved in the administration of this 13
Act, if the officer is appropriately qualified. 14
of appointment 15
Duration
421.(1) A panel member may be appointed for a term of not more than 16
3 years. 17
(2) Appointment as a panel member is on a part-time basis. 18
(3) A panel member may resign by signed notice of resignation given to 19
the Minister. 20
of appointment 21
Conditions
422.(1) A panel member is to be paid from the fund the remuneration 22
and allowances decided by the Governor in Council for acting as a member 23
of an agents and motor dealers board. 24
(2) A panel member holds office on the conditions not provided in this 25
Act decided by the Governor in Council. 26
s 423 277 s 425
Agents and Motor Dealers
from office 1
Removal
423. The Governor in Council may, by written notice given to a panel 2
member, remove the member from office if the member-- 3
(a) is incapable of properly discharging the functions of a panel 4
member; or 5
(b) is unfit to hold the office. 6
ART 2--ESTABLISHMENT AND COMPOSITION 7
P
OF AGENTS AND MOTOR DEALERS BOARDS 8
to establish agents and motor dealers board 9
Registrar
424.(1) The registrar may establish an agents and motor dealers board to 10
deal with matters within the jurisdiction of agents and motor dealers boards. 11
(2) An agents and motor dealers board must consist of 3 panel members. 12
PART 3--JURISDICTION 13
14
Jurisdiction
425.(1) An agents and motor dealers board, other than a board that 15
includes as a member a pastoral house representative, has jurisdiction-- 16
(a) to review fees chargeable by licensees; and 17
(b) to hear and decide disciplinary matters involving licensees; and 18
(c) to hear and decide claims against the fund. 19
(2) An agents and motor dealers board established to advise the Minister 20
on any matter referred for advice by the Minister may include a pastoral 21
house representative. 22
s 426 278 s 428
Agents and Motor Dealers
PART 4--GENERAL 1
may refer matter to agents and motor dealers board for 2
Minister
advice 3
426. The Minister may refer a matter to an agents and motor dealers 4
board for advice. 5
of interest 6
Conflicts
427.(1) This section applies if a panel member has a direct or indirect 7
interest in a matter being, or to be, considered by an agents and motor 8
dealers board of which the panel member is a member that conflicts or may 9
conflict with the discharge of the member's duties in considering the matter. 10
(2) As soon as practicable after the relevant facts come to the member's 11
knowledge, the member must disclose the nature of the interest and conflict 12
to-- 13
(a) if the matter is a matter referred to the board for advice by the 14
Minister--the Minister; or 15
(b) if the matter is about a claim against the fund, or a fee review 16
proceeding or disciplinary proceeding--the registrar. 17
(3) Unless the Minister or, if subsection (2)(b) applies, the registrar 18
decides otherwise, the member-- 19
(a) must not be present during the board's deliberation of the matter; 20
and 21
(b) must not take part in the board's decision on the matter. 22
notice of agents and motor dealers board and its members 23
Judicial
428. Every court must take judicial notice of-- 24
(a) the appointment of a panel member of the agents and motor 25
dealers board's panel; and 26
(b) the signature of a panel member if it appears on a document 27
issued by an agents and motor dealers board. 28
s 429 279 s 432
Agents and Motor Dealers
1
Registrar
429.(1) The chief executive may appoint a registrar of agents and motor 2
dealers boards for this Act. 3
(2) The registrar is to be employed under the Public Service Act 1996. 4
(3) The office of registrar may be held in conjunction with any other 5
office in the public service. 6
to provide administrative support 7
Department
430.(1) The department must provide the administrative support services 8
that the department considers appropriate to allow an agents and motor 9
dealers board to exercise the board's jurisdiction effectively and efficiently. 10
(2) The cost of providing the services is payable from the fund. 11
CHAPTER 11--COMPLIANCE, DISCIPLINE AND 12
CLAIMS AGAINST THE FUND 13
ART 1--FEE REVIEW PROCEEDINGS 14
P
1--Preliminary 15
Division
for pt 1 16
Definitions
431. In this part-- 17
"fee" includes commission, expense, gain and other remuneration. 18
"licensee" includes a former licensee. 19
objection about fees to chief executive 20
Giving
432.(1) This section applies to a person who has appointed a licensee to 21
perform a function for the person and considers that the fee charged or 22
s 433 280 s 433
Agents and Motor Dealers
chargeable by the licensee for the performance of the function is excessive. 1
(2) The person may give the chief executive a written objection to the fee 2
after the person has attempted unsuccessfully to resolve the matter with the 3
licensee. 4
(3) The objection must state-- 5
(a) the purpose for which the licensee was appointed; and 6
(b) the functions performed or to be performed by the licensee; and 7
(c) the fee charged or chargeable for the performance of the 8
functions; and 9
(d) the reasons why the person considers the fee is excessive; and 10
(e) the action the person has taken in the unsuccessful attempt to 11
resolve the matter with the licensee. 12
(4) The person must give the objection and a copy of any material 13
relevant to the objection including, for example, the notice of appointment 14
of the licensee to the chief executive not later than 30 days after the 15
accounting under section 351181 has been provided to the person. 16
(5) The chief executive may extend the time for giving the objection 17
under subsection (4) if the chief executive is satisfied that the person has 18
good reason for not giving the objection within the time allowed and the 19
licensee will not be unfairly prejudiced by the extension of time. 20
Division 2--Starting fee review proceedings 21
for starting fee review proceedings 22
Ground
433. The following is a ground for starting a fee review proceeding 23
against a licensee-- 24
(a) the chief executive has received an objection under section 432; 25
and 26
(b) the chief executive is satisfied-- 27
(i) the fee charged or chargeable by a licensee may be 28
181 Section 351 (Accounting to clients)
s 434 281 s 435
Agents and Motor Dealers
excessive; and 1
(ii) the question of whether the fee is excessive should be 2
decided by an agents and motor dealers board. 3
to start proceedings 4
How
434.(1) A fee review proceeding against a licensee is started by the chief 5
executive by filing with the registrar a notice ("complaint") stating-- 6
(a) the nature of the matter being referred to an agents and motor 7
dealers board for decision; and 8
(b) the name of the person objecting to the fee (the "complainant"); 9
and 10
(c) the function the complainant claims the licensee was appointed to 11
perform; and 12
(d) the functions the complainant claims were performed or to be 13
performed by the licensee or were not performed; and 14
(e) the fee the complainant claims was charged or is chargeable for 15
the performance of the functions; and 16
(f) the reasons why the complainant considers the fee is excessive. 17
(2) The registrar must fix a day for the hearing of the complaint and issue 18
a notice ("attendance notice") requiring the licensee to attend before an 19
agents and motor dealers board at a stated time, day and place to answer the 20
complaint. 21
(3) If the chief executive has received more than 1 objection about fees 22
charged or chargeable by 1 licensee, the chief executive may deal with all 23
the objections in the complaint. 24
(4) The complaint and attendance notice may be combined in 1 notice. 25
proceeding is taken to start 26
When
435. A fee review proceeding is taken to have started on the day the 27
licensee is given a complaint and attendance notice under section 434, 28
unless the parties agree on an earlier day. 29
s 436 282 s 438
Agents and Motor Dealers
date must be at least 14 days after attendance notice is given 1
Hearing
436. The day stated in the attendance notice as the day on which the 2
licensee ("respondent") is required to attend before an agents and motor 3
dealers board must be a day at least 14 days after the proceeding starts. 4
PART 2--DISCIPLINARY PROCEEDINGS 5
Division 1--Definitions 6
for pt 2 7
Definitions
437. In this part-- 8
"former licensee" means a person who held a licence under this or the 9
repealed Act within 3 years of a proceeding under this part being 10
started. 11
"former salesperson" means a person who was a salesperson within 12
1 year of a proceeding under this part being started. 13
"licensee" includes a former licensee. 14
"salesperson" means a restricted letting agent (employee), real estate 15
salesperson, pastoral house salesperson, motor salesperson or 16
commercial agent (employee) and includes a former salesperson. 17
2--Starting disciplinary proceedings 18
Division
for starting disciplinary proceeding 19
Grounds
438. The following are grounds for starting a disciplinary proceeding 20
against a licensee or salesperson-- 21
(a) the licensee or salesperson has been convicted of an indictable 22
offence or an offence against this Act; 23
(b) the licensee or salesperson has breached-- 24
s 438 283 s 438
Agents and Motor Dealers
(i) a code of conduct; or 1
(ii) an undertaking given under chapter 13, part 2;182 2
(c) the licensee or salesperson has contravened a corresponding law; 3
(d) the licensee or salesperson has been disqualified from holding a 4
licence under a corresponding law; 5
(e) for a salesperson--the salesperson is not eligible to be employed 6
as a salesperson; 7
(f) an amount has been paid from the fund because the licensee or 8
salesperson did, or omitted to do, something that gave rise to the 9
claim against the fund; 10
(g) the licensee or salesperson fraudulently or improperly obtained or 11
helped someone else to fraudulently or improperly obtain a 12
licence; 13
(h) the licensee or salesperson has failed to comply with an order 14
made by the small claims tribunal, a Magistrates Court, another 15
court or an agents and motor dealers board; 16
(i) for a licensee-- 17
(i) the licensee is not a suitable person to hold a licence; or 18
(ii) the licensee has carried on, or is carrying on, business under 19
a licence with someone who is not a suitable person; or 20
(iii) the licensee has, in carrying on a business or performing a 21
function, been incompetent or acted in an unprofessional 22
way; or 23
(iv) the licensee has failed to ensure that the licensee's employees 24
or employees under the licensee's supervision-- 25
(A) are properly supervised in the performance of their 26
duties; or 27
(B) comply with this Act; or 28
(v) the licensee has failed to comply with a condition of the 29
person's licence; or 30
182 Chapter 13 (Injunctions and undertakings) part 2 (Undertakings)
s 439 284 s 439
Agents and Motor Dealers
(vi) the licensee is an executive officer of a corporation that an 1
agents and motor dealers board finds guilty of a disciplinary 2
charge under section 480;183 or 3
(vii) if the licensee is a corporation-- 4
(A) an executive officer of the corporation is not a suitable 5
person to be an executive officer of a corporation; or 6
(B) an executive officer of the corporation is disqualified 7
under this part from being an executive officer of a 8
corporation; 9
(j) for a restricted letting agent (employee), real estate salesperson, 10
motor salesperson or commercial agent (employee) 11
("employee")--the employee has-- 12
(i) in performing a function of a licensee, been incompetent or 13
acted in an unprofessional way; or 14
(ii) performed a function not authorised under the employee's 15
employment authority; 16
(k) another ground that may be prescribed under a regulation. 17
for starting disciplinary proceeding against executive officer 18
Ground
439.(1) This section applies if a ground for starting a disciplinary 19
proceeding against an executive officer of a corporation exists under 20
section 438(i)(vi). 21
(2) The chief executive must not start a disciplinary proceeding against 22
the executive officer if the chief executive is satisfied-- 23
(a) the act or omission relevant to the proceeding against the 24
corporation was done or made without the officer's knowledge; 25
and 26
(b) the officer could not with reasonable diligence have prevented the 27
doing of the act or the making of the omission. 28
183 Section 480 (Orders agents and motor dealers board may make after disciplinary
charge hearing)
s 440 285 s 442
Agents and Motor Dealers
to start proceedings 1
How
440.(1) A disciplinary proceeding against a person ("respondent") is 2
started by the chief executive by filing with the registrar a notice 3
("complaint") stating-- 4
(a) the grounds on which a disciplinary charge is to be brought 5
against the respondent; and 6
(b) the nature of the matter being referred to an agents and motor 7
dealers board for decision. 8
(2) The registrar must fix a day for the hearing of the complaint and issue 9
a notice ("attendance notice") requiring the respondent to attend before an 10
agents and motor dealers board. 11
(3) The chief executive must give a copy of the complaint and attendance 12
notice to the respondent. 13
(4) The complaint and attendance notice may be combined in 1 notice. 14
proceeding is taken to start 15
When
441. A disciplinary proceeding is taken to have started on the day the 16
person is given a complaint and attendance notice under section 440. 17
date must be at least 14 days after attendance notice is given 18
Hearing
442. The day stated in the attendance notice as the day on which the 19
respondent is required to attend before an agents and motor dealers board 20
must be a day at least 14 days after the proceeding starts, unless the parties 21
agree on an earlier day. 22
s 443 286 s 444
Agents and Motor Dealers
PART 3--CLAIMS AGAINST THE FUND 1
Division 1--Definitions 2
for pt 3 3
Definitions
443. In this part-- 4
"decision-maker", for a claim, means the registrar or agents and motor 5
dealers board deciding the claim. 6
"licensee" includes a person who-- 7
(a) does not hold a licence; and 8
(b) holds out that the person performs the functions of a licensee in 9
the carrying on of a business. 10
"minor claim" means a claim against the fund of not more than $5 000. 11
"relevant person" means-- 12
(a) a licensee; or 13
(b) a licensee's partner, employee, or agent; or 14
(c) a person having apparent charge or control of a licensee's 15
registered office or business. 16
Division 2--Who can claim 17
18
Claims
444.(1) A person ("claimant") may make a claim against the fund if the 19
person suffers financial loss because of the happening of any of the 20
following events-- 21
(a) the contravention of any of the following provisions by a relevant 22
person-- 23
s 444 287 s 444
Agents and Motor Dealers
· chapter 4, part 3, division 4, 5 or 6184 1
· chapter 5, part 3, division 4, 5 or 6185 2
· chapter 6, part 3, division 4, 5, or 6186 3
· section 232187 4
· chapter 7, part 3, division 4188 5
· section 280189 6
· chapter 9, part 1190 7
· section 510191 8
· section 513;192 9
(b) a failure of an auctioneer to ensure the buyer of a motor vehicle 10
sold by the auctioneer gains clear title to the vehicle at the time 11
property in the vehicle passes to the buyer, whether or not the 12
auctioneer contravenes section 232; 13
(c) a failure of a motor dealer to ensure the buyer of a motor vehicle 14
sold by or for the dealer gains clear title to the vehicle at the time 15
property in the vehicle passes to the buyer, whether or not the 16
motor dealer contravenes section 232 or 280; 17
(d) a contravention of the Land Sales Act 1984 by a licensee 18
appointed by the owner of land to which that Act applies or a 19
relevant person employed by the licensee; 20
184 Chapter 4, part 3, division 4 (Interests in property), 5 (Representations about
finance) or 6 (Lands not lawfully useable for residential purposes)
185 Chapter 5, part 3, division 4 (Interests in property), 5 (Representations about
finance) or 6 (Lands not lawfully useable for residential purposes)
186 Chapter 6, part 3, division 4 (Interests in property), 5 (Representations about
finances) or 6 (Lands not lawfully useable for residential purposes)
187 Section 232 (Guarantee of title for motor vehicles)
188 Chapter 7, part 3, division 4 (Interests in property)
189 Section 280 (Guarantee of title)
190 Chapter 9, part 1 (Trust accounts)
191 Section 510 (Wrongful conversion and false accounts)
192 Section 513 (False representations about property)
s 445 288 s 445
Agents and Motor Dealers
(e) a stealing, misappropriation or misapplication by a relevant 1
person of property entrusted to the person as agent for the 2
claimant in the person's capacity as a relevant person. 3
(2) A person may make a claim against the fund even if the person has 4
made another claim for the loss against a receiver and the receiver has not 5
considered or has refused the other claim. 6
who can not claim 7
Persons
445.(1) A person can not make a claim against the fund for the stealing, 8
misappropriation or misapplication of an amount that a licensee was 9
directed to invest under section 345.193 10
(2) The following persons can not make a claim against the fund for any 11
of the following financial losses-- 12
(a) a seller of livestock who suffers financial loss in relation to the 13
sale of the livestock if-- 14
(i) the livestock are received by a licensee; and 15
(ii) the licensee and seller agree in writing that the licensee 16
guarantees payment to the seller of the livestock's purchase 17
price;194 18
(b) a licensee who suffers financial loss in the course of performing a 19
function, or carrying on business, as a licensee; 20
(c) a person holding a licence (however described) under a 21
corresponding law that is similar to a licence under this Act who 22
suffers financial loss in the course of performing a function, or 23
carrying on business, under the person's licence; 24
(d) a financier of a motor dealer's business who suffers financial loss 25
because of financing the motor dealer's business; 26
(e) a person who suffers financial loss because the person guaranteed 27
the motor dealer's obligations under a financial arrangement 28
made by the motor dealer. 29
193 Section 345 (Investments)
194 The practice in section 445(2)(a)(ii) is commonly referred to as `del credere'.
s 446 289 s 447
Agents and Motor Dealers
Division 3--Making and dealing with claims 1
limit 2
Claims--time
446. A person may claim against the fund only if the person-- 3
(a) makes the claim within the earlier of the following-- 4
(i) 1 year after the person becomes aware that the person has 5
suffered financial loss because of an event mentioned in 6
section 444(1);195 7
(ii) 3 years after the happening of the event that caused the 8
person's financial loss; or 9
(b) if the person has made a claim against a receiver--makes the 10
claim within 3 months after a receiver has given notice of refusal 11
to allow the person's claim under section 398;196 or 12
(c) if the person has started a proceeding in a court of competent 13
jurisdiction to recover the person's financial loss--makes the 14
claim within 3 months after the proceeding ends. 15
to make a claim 16
How
447.(1) A claim must be made in writing to the chief executive within the 17
time stated in section 446. 18
(2) The claim must state-- 19
(a) the event alleged to give rise to the claim; and 20
(b) when the event happened; and 21
(c) if the claimant was not immediately aware that the claimant 22
suffered financial loss because of the event--when the claimant 23
became aware of the financial loss; and 24
(d) all relevant details about the event and the financial loss; and 25
(e) the claimant's estimated financial loss. 26
195 Section 444 (Claims)
196 Section 398 (Deciding claims)
s 448 290 s 449
Agents and Motor Dealers
(3) A claim is taken to have been made on the day the claim is given to 1
the chief executive even though the claimant is unable to state all of the 2
particulars mentioned in subsection (2). 3
(4) The chief executive may require the claimant to verify the claim, or 4
part of the claim. 5
6
Example of verification--
7
Statutory declaration.
executive may investigate claims and make recommendations 8
Chief
448.(1) The chief executive may inquire, or authorise another person to 9
inquire, into a claim. 10
(2) If, after investigating the claim, the chief executive considers that 11
there are no grounds on which the claimant may establish a claim against 12
the fund, the chief executive may recommend to the Minister that an 13
ex gratia payment be made to the claimant in relation to the claim. 14
(3) The chief executive may make the recommendation only if the chief 15
executive is satisfied that-- 16
(a) the person suffered financial loss because of the actions of a 17
relevant person; and 18
(b) it is reasonable in all the circumstances to make the payment. 19
(4) If the Minister accepts the recommendation, the Minister may 20
approve that the chief executive authorise the payment from the fund. 21
executive to give respondent notice of claim 22
Chief
449.(1) The chief executive must give notice of a claim ("claim notice") 23
received under section 447 to the person or persons ("respondent") whose 24
actions are alleged to have given rise to the claim before a decision about the 25
claim is made. 26
(2) The claim notice must give particulars of the claim, including the 27
amount of the alleged financial loss, and the event alleged to have given rise 28
to the claim. 29
(3) The respondent may-- 30
s 450 291 s 451
Agents and Motor Dealers
(a) give the chief executive any information relevant to the claim; or 1
(b) attempt to settle the claim with the claimant. 2
(4) If the respondent intends giving the chief executive information 3
mentioned in subsection (3)(a), the respondent must do so within 28 days 4
after the claim notice is given. 5
(5) If the respondent intends to attempt to settle the claim under 6
subsection (3)(b), the respondent must advise the chief executive of the 7
intention within 28 days after the claim notice is given. 8
(6) If the respondent and claimant settle the claim-- 9
(a) the respondent must advise the chief executive in writing and 10
provide satisfactory evidence of the settlement; and 11
(b) if the chief executive is satisfied that the claim has settled--the 12
claim is taken to have been withdrawn. 13
with unsettled claims 14
Dealing
450.(1) The chief executive must refer unsettled claims to the registrar. 15
(2) The registrar must decide a minor claim personally, unless the claim 16
is 1 of a number of related claims against a respondent. 17
(3) The registrar must refer all claims, other than minor claims the 18
registrar deals with personally, to an agents and motor dealers board for 19
decision. 20
that must be taken into account when deciding claims 21
Matters
451.(1) A claim may be decided only if-- 22
(a) the period mentioned in section 449(4) has ended; or 23
(b) if the respondent has given notice of intention to attempt to settle 24
the claim under section 449(5)--the respondent and the claimant 25
have failed to settle the claim within a reasonable time. 26
(2) In deciding the claim, the decision-maker must take into account any 27
amount the claimant might reasonably have received or recovered if not for 28
the claimant's neglect or default. 29
s 452 292 s 453
Agents and Motor Dealers
claims--registrar 1
Deciding
452.(1) This section applies to a minor claim the registrar must decide. 2
(2) The registrar may ask the claimant or respondent for the further 3
information or documents the registrar reasonably requires to decide the 4
claim. 5
(3) The registrar must decide the claim without a hearing. 6
(4) The registrar may-- 7
(a) accept the claim or reject the claim, wholly or partly; and 8
(b) make, in relation to the claim, any order an agents and motor 9
dealers board may make under section 481.197 10
(5) The registrar must give the claimant and respondent written notice of 11
the registrar's decision to accept or reject the claim and the registrar's order, 12
if any, within 14 days of making the decision. 13
(6) If the registrar rejects the claim, the registrar must also give the 14
claimant an information notice about the decision. 15
claims without a hearing--agents and motor dealers board 16
Deciding
453.(1) This section applies to a claim an agents and motor dealers board 17
decides to deal with without a hearing. 18
(2) The board may ask the claimant or respondent for the further 19
information or documents the board reasonably requires to decide the claim. 20
(3) The board may-- 21
(a) accept the claim or reject the claim, wholly or partly, and make, in 22
relation to the claim, any order an agents and motor dealers board 23
may make under section 481;198 or 24
(b) if the board considers that it is not appropriate to decide the claim 25
on the information before it--refer the claim back to the registrar 26
197 Section 481 (Orders agents and motor dealers board may make on claim
hearing)
198 Section 481 (Orders agents and motor dealers board may make on claim
hearing)
s 454 293 s 455
Agents and Motor Dealers
for decision at a hearing under part 4. 1
(4) If the board decides the claim, the board must give the claimant and 2
respondent written notice of the board's decision and the board's order, if 3
any, within 14 days of making the decision. 4
(5) If the board rejects the claim, the board must also give the claimant an 5
information notice about the decision. 6
4--Payment of claims 7
Division
of claims 8
Payment
454.(1) If a claim is allowed under division 3 or section 481, the chief 9
executive must authorise payment from the fund in the amount decided by 10
the decision-maker. 11
(2) Subsection (1) is subject to section 457(2). 12
(3) A payment under subsection (1)-- 13
(a) must not be made until the end of the period allowed for appeal 14
against a decision of the decision-maker or, if an appeal has been 15
made, until the appeal is finally decided; and 16
(b) is taken to be in full settlement of the claim against the fund. 17
on recovery from fund 18
Limits
455.(1) A claimant can not recover from the fund an amount more than 19
the balance of the claimant's financial loss after deducting from the 20
claimant's loss-- 21
(a) the amount, including the value of all benefits, received or 22
recovered by the claimant from a source other than the fund in 23
reduction of the loss; and 24
(b) the amount, including the value of all benefits, the decision-maker 25
considers the claimant might reasonably have received or 26
recovered if not for the claimant's neglect or default. 27
28
Examples of paragraph (a)--
29
1. Compensation received from the licensee for the loss.
s 456 294 s 458
Agents and Motor Dealers
1
2. A payment from a receiver for the loss.
(2) The most a claimant may recover from the fund is $500 000 or a 2
higher amount prescribed under a regulation. 3
(3) A regulation may prescribe the total amount that may be paid from 4
the fund because of a contravention, stealing, misappropriation or 5
misapplication by a single person. 6
(4) Interest is not payable from the fund on a judgment obtained or a 7
claim allowed against the fund. 8
of other recovery 9
Notice
456. A claimant must give the chief executive written notice of an 10
amount or benefit, other than an amount from the fund, received by the 11
claimant in relation to the claimant's financial loss, whether before or after 12
the claim is paid. 13
Maximum penalty--200 penalty units or 3 years imprisonment. 14
Division 5--Reimbursements to fund 15
of documents 16
Production
457.(1) The chief executive may ask a claimant to give the chief 17
executive the documents necessary to allow the chief executive to exercise 18
the chief executive's rights against a relevant person under section 458. 19
(2) If the claimant fails to comply with a request under subsection (1), 20
the chief executive may defer payment of the claim until the request is 21
complied with. 22
23
Subrogation
458.(1) If an amount is paid from the fund in settlement of a claim, the 24
chief executive is subrogated, to the extent of the payment, to the claimant's 25
rights and remedies against the relevant person in relation to whom the 26
claim arose. 27
s 459 295 s 460
Agents and Motor Dealers
(2) The chief executive must pay an amount the chief executive recovers 1
from the relevant person to the fund. 2
of overpayments 3
Recovery
459.(1) This section applies if a claimant who has received a payment 4
from the fund recovers-- 5
(a) an amount more than the claimant is entitled to recover under 6
section 455199 ("overpayment"); or 7
(b) a thing capable of physical delivery in relation to which the 8
claimant received a payment from the fund. 9
(2) The claimant must-- 10
(a) reimburse the overpayment to the fund; or 11
(b) for a thing capable of physical delivery-- 12
(i) deliver the thing to the chief executive in accordance with the 13
chief executive's direction; or 14
(ii) reimburse to the fund the amount of the payment from the 15
fund the person received in relation to the thing. 16
Maximum penalty--200 penalty units. 17
(3) The chief executive may recover the overpayment or the amount of 18
the payment from the fund the person received in relation to the thing as a 19
debt in a court of competent jurisdiction. 20
(4) If the chief executive receives a thing, the chief executive may sell the 21
thing in the way the chief executive decides. 22
(5) The chief executive must pay an amount received by the chief 23
executive under subsection (2), (3) or (4) to the fund. 24
officers to reimburse fund 25
Executive
460.(1) This section applies if an amount is paid from the fund in 26
settlement, wholly or partly, of a claim relating to the business of a licensee 27
that is a corporation. 28
199 Section 455 (Limits on recovery from fund)
s 461 296 s 462
Agents and Motor Dealers
(2) The corporation's executive officers when the event that gave rise to 1
the claim happened are jointly and severally liable to reimburse the fund for 2
the payment. 3
(3) The chief executive may recover an amount liable to be reimbursed 4
under subsection (2) as a debt in a court of competent jurisdiction. 5
(4) The chief executive must pay an amount the chief executive recovers 6
under this section to the fund. 7
Division 6--Miscellaneous 8
of fund 9
Insufficiency
461.(1) If there is not enough in the fund to pay all claims decided in a 10
financial year, a claim that is unpaid, or partly unpaid, is-- 11
(a) charged against future receipts of the fund; and 12
(b) payable from the fund when there is enough in it to pay the claim 13
or balance of the claim. 14
(2) Claims that can not be paid immediately from the fund-- 15
(a) are payable in the order they are approved by the chief executive; 16
and 17
(b) are not chargeable against other property under the chief 18
executive's control. 19
executive not liable for payments from fund 20
Chief
462. The chief executive incurs no liability for a payment from the fund 21
under this division made in good faith in the exercise or purported exercise 22
of the chief executive's powers. 23
s 463 297 s 464
Agents and Motor Dealers
ART 4--HEARINGS 1
P
1--Procedure 2
Division
of agents and motor dealers board for hearing 3
Establishment
463.(1) The registrar may establish an agents and motor dealers board-- 4
(a) to review fees chargeable by licensees; and 5
(b) to hear and decide disciplinary matters involving licensees; and 6
(c) to hear and decide claims against the fund. 7
(2) The registrar must select as members of the board for the hearing-- 8
(a) 1 panel member ("industry member") who holds a licence; and 9
(b) 1 panel member who is a lawyer; and 10
(c) 1 panel member representing consumer interests. 11
(3) The lawyer is to be the chairperson of the board. 12
(4) The industry member must be the holder of a licence in the industry 13
the respondent appearing before the board is employed or engaged in. 14
(5) However, if the industry in which the respondent is employed or 15
engaged is the pastoral house industry, the industry member must be a 16
member who holds a real estate agent's licence or auctioneer's licence. 17
(6) The registrar must keep a record of the name of the chairperson and 18
the other members constituting the board for each hearing and the purpose 19
for which the hearing was held. 20
assisting 21
Counsel
464.(1) The agents and motor dealers board may, after first obtaining the 22
registrar's approval, appoint a lawyer to assist the board for a hearing. 23
(2) Without limiting the ways the lawyer may assist the board under 24
subsection (1), the lawyer may, to the extent the board considers 25
appropriate, examine or cross-examine any witness on any matter the board 26
considers relevant to the hearing. 27
s 465 298 s 468
Agents and Motor Dealers
of hearings 1
Conduct
465.(1) The chairperson presides at an agents and motor dealers board 2
hearing. 3
(2) The decision of the board is the decision of the majority of its 4
members. 5
6
Venues
466.(1) An agents and motor dealers board may sit at the times and 7
places decided by the registrar. 8
(2) Subsection (1) does not affect the board's power under section 476200 9
to adjourn a hearing of a disciplinary charge to a day fixed by the board. 10
to be held in private 11
Hearings
467.(1) Hearings of an agents and motor dealers board are not open to 12
the public. 13
(2) However, a person may attend a board hearing with the agreement of 14
the board and all the parties appearing before the board. 15
of appearance and representation 16
Right
468. The following persons are entitled to appear before an agents and 17
motor dealers board at a hearing-- 18
(a) the respondent; 19
(b) the respondent's lawyer; 20
(c) the claimant; 21
(d) the claimant's lawyer; 22
(e) the complainant; 23
(f) the complainant's lawyer; 24
(g) the chief executive; 25
200 Section 476 (Power to adjourn hearings)
s 469 299 s 471
Agents and Motor Dealers
(h) the chief executive's representative; 1
(i) a lawyer appointed to assist the board; 2
(j) another person to whom the board gives leave to appear. 3
of respondent 4
Non-appearance
469. If the agents and motor dealers board is satisfied that the respondent 5
has been given an attendance notice for the hearing and does not appear at 6
the hearing, the board may hear and decide the matter in the respondent's 7
absence. 8
9
Procedure
470.(1) When conducting the hearing, the agents and motor dealers 10
board must-- 11
(a) observe natural justice; and 12
(b) act as quickly, and with as little formality and technicality, as is 13
consistent with a fair and proper consideration of the issues 14
before it. 15
(2) In conducting the hearing, the board-- 16
(a) is not bound by the rules of evidence; and 17
(b) may inform itself of any matter in the way it considers 18
appropriate; and 19
(c) may decide the procedures to be followed for the hearing. 20
(3) However, the board must comply with this part and any procedural 21
rules that may be prescribed under a regulation. 22
of complaint 23
Amendment
471.(1) The agents and motor dealers board may at any stage of the 24
hearing amend the particulars of the complaint in the way it considers 25
appropriate-- 26
(a) if the board is asked by the party who brought the complaint and 27
it is satisfied the amendment is of a formal or minor nature; or 28
s 472 300 s 473
Agents and Motor Dealers
(b) on its own initiative, if all the parties agree. 1
(2) However, the complaint must not be amended in a way that 2
introduces different or additional grounds of complaint. 3
(3) The amended complaint is taken to be the complaint. 4
Division 2--Attendance notice 5
notice 6
Attendance
472.(1) The agents and motor dealers board may, on the application of a 7
party to a hearing or on the board's own initiative, issue an attendance notice 8
requiring a person to appear before the board at a stated time and place to 9
give evidence or to produce a stated document or thing. 10
(2) An attendance notice must be served personally on the person. 11
(3) The person must not, without reasonable excuse, fail to attend as 12
required by the notice and continue to attend as required by the presiding 13
member until excused from further attendance. 14
Maximum penalty--200 penalty units. 15
3--Agents and motor dealers board's powers 16
Division
of agents and motor dealers board relating to taking of 17
Powers
evidence 18
473.(1) For the hearing, the agents and motor dealers board may-- 19
(a) take evidence on oath; or 20
(b) require a person appearing before the board to give evidence to 21
take an oath; or 22
(c) administer an oath to a person appearing before the board. 23
(2) A person appearing as a witness at the board hearing must not, 24
without reasonable excuse-- 25
(a) fail to be sworn; or 26
s 474 301 s 476
Agents and Motor Dealers
(b) fail to answer a question that the person is required to answer by 1
the board; or 2
(c) fail to produce a document that the person was required to 3
produce by an attendance notice served on the person. 4
Maximum penalty for subsection (2)--200 penalty units. 5
of documents 6
Inspection
474.(1) If a document or thing is produced to an agents and motor 7
dealers board at a hearing, the board may-- 8
(a) inspect the document or thing; and 9
(b) make copies of, photograph, or take extracts from, the document 10
or thing if it is relevant to the hearing. 11
(2) The board may also take possession of the document or thing, and 12
keep it while it is necessary for the hearing. 13
(3) While it keeps a document or thing, the board must permit a person 14
otherwise entitled to possession of the document or thing to inspect, make 15
copies of, photograph, or take extracts from, the document or thing, at the 16
reasonable time, date and place the board decides. 17
to refer matter for expert assessment or opinion 18
Power
475.(1) An agents and motor dealers board may refer a matter of a 19
technical nature arising in the course of a hearing for investigation by an 20
appropriate expert. 21
(2) In carrying out an investigation under this section, the expert has the 22
same protection and immunity as a member of the board. 23
(3) The expert must report the results of the investigation in writing to the 24
board and provide the parties with copies of the report. 25
(4) The board may adopt the findings of the expert, wholly or partly. 26
to adjourn hearings 27
Power
476. The agents and motor dealers board may adjourn the hearing from 28
time to time. 29
s 477 302 s 479
Agents and Motor Dealers
of agents and motor dealers board 1
Contempt
477. A person must not-- 2
(a) insult an agents and motor dealers board or a board member; or 3
(b) deliberately interrupt a board hearing; or 4
(c) create or continue or join in creating or continuing, a disturbance 5
in or near a place where the board is conducting the hearing; or 6
(d) do anything that would be contempt of court if the board were a 7
judge acting judicially. 8
Maximum penalty--200 penalty units. 9
of members etc. 10
Protection
478.(1) An agents and motor dealers board member has, in the 11
performance of the member's duties as a member, the same protection and 12
immunity as a Supreme Court judge carrying out the functions of a judge. 13
(2) A person representing a person before an agents and motor dealers 14
board has the same protection and immunity as a barrister appearing for a 15
party in a proceeding in the Supreme Court. 16
(3) A person appearing before an agents and motor dealers board as a 17
witness has the same protection as a witness in a proceeding in the Supreme 18
Court. 19
(4) A document produced at, or used for, a discipline and review hearing 20
has the same protection during the hearing it would have if produced before 21
the Supreme Court. 22
Division 4--Agents and motor dealers board's orders 23
agents and motor dealers board may make on fee review 24
Orders
hearing 25
479. An agents and motor dealers board may make any of the following 26
orders on a fee review hearing-- 27
(a) an order declaring that a fee is, or is not, excessive; 28
s 480 303 s 480
Agents and Motor Dealers
(b) an order declaring an appropriate fee; 1
(c) an order requiring a stated person to pay a stated amount to 2
another stated person within a stated time; 3
(d) another order the board thinks appropriate to ensure a stated 4
person observes the provisions of this Act. 5
agents and motor dealers board may make on disciplinary 6
Orders
charge hearing 7
480.(1) An agents and motor dealers board may make any of the 8
following orders against a person the board finds guilty of a disciplinary 9
charge brought under this Act-- 10
(a) an order reprimanding the person; 11
(b) an order that the person pay to the chief executive within the time 12
stated in the order, a fine of not more than 50 penalty units; 13
(c) an order that the person's licence be suspended for the period 14
stated in the order; 15
(d) an order-- 16
(i) if the person is the holder of a licence at the time the order is 17
made--that the licence be cancelled; or 18
(ii) whether or not the person is the holder of a licence at the 19
time the order is made--that the person be disqualified 20
permanently, or for the period stated in the order, from 21
holding a licence; 22
(e) an order, for a licensed individual who is an executive officer of a 23
corporation, that the individual be disqualified permanently, or for 24
the period stated in the order, from being an executive officer of a 25
corporation that holds a licence; 26
(f) an order that the person's name be entered in the register of 27
ineligible persons; 28
(g) an order imposing conditions on, or amending or revoking the 29
conditions of, the person's licence; 30
(h) another order the board thinks appropriate to ensure the person 31
complies with this Act. 32
s 481 304 s 484
Agents and Motor Dealers
(2) The board may not make an order under subsection (1)(d)(ii) 1
disqualifying the person from holding a licence if the board is satisfied that 2
a court has, in relation to the matter giving rise to the disciplinary charge, 3
declined to make an order under section 530(2)201 disqualifying the person 4
from holding a licence after being asked to do so. 5
agents and motor dealers board may make on claim hearing 6
Orders
481. An agents and motor dealers board may make the following orders 7
on a claim hearing-- 8
(a) an order allowing or rejecting the claim, wholly or partly; 9
(b) an order about recovery of an amount payable in relation to a 10
claim; 11
(c) an order that no amount is recoverable in relation to a claim. 12
of order 13
Form
482. An agents and motor dealers board order must-- 14
(a) be signed by the presiding member; and 15
(b) state the board's findings in relation to the facts of the case. 16
of order 17
Service
483. The registrar must give a copy of an agents and motor dealers board 18
order relating to a hearing to the respondent. 19
of fine or other amounts 20
Recovery
484. An order of the board requiring the payment of an amount may be 21
filed in the registry of a court having jurisdiction for the recovery of a debt 22
equal to the amount and, on being filed, is taken to be an order of that court 23
and may be enforced as a debt. 24
201 Section 530 (Power of court)
s 485 305 s 487
Agents and Motor Dealers
1
Publication
485.(1) The chief executive may publish, in any way the chief executive 2
considers appropriate, details about-- 3
(a) the respondent to a hearing; and 4
(b) the hearing, including matters dealt with at the hearing; and 5
(c) the agents and motor dealers board's findings at the hearing; and 6
(d) any order made at the hearing. 7
(2) The chief executive has, in a proceeding for defamation for a 8
publication made by the chief executive under subsection (1), a defence of 9
absolute privilege if the publication was made in good faith. 10
HAPTER 12--ENFORCEMENT 11
C
ART 1--INSPECTORS 12
P
13
Appointment
486.(1) The chief executive is an inspector. 14
(2) The chief executive may appoint a person as an inspector. 15
(3) The chief executive may appoint a person as an inspector only if the 16
chief executive is satisfied the person has the necessary expertise to be an 17
inspector. 18
cards 19
Identity
487.(1) The chief executive must give each inspector an identity card. 20
(2) The identity card must-- 21
(a) contain a recent photo of the inspector; and 22
(b) be signed by the inspector; and 23
(c) identify the person as an inspector. 24
s 488 306 s 490
Agents and Motor Dealers
(3) A person who stops being an inspector must return the identity card 1
to the chief executive as soon as practicable, but within 21 days, after the 2
person stops being an inspector, unless the person has a reasonable excuse. 3
Maximum penalty--10 penalty units. 4
or display of identity cards 5
Production
488.(1) An inspector may exercise a power under this Act in relation to a 6
person only if the inspector first produces or displays the inspector's 7
identity card for inspection by the person. 8
(2) If, for any reason, it is not practicable to comply with subsection (1), 9
the inspector must produce the identity card for inspection by the person at 10
the first reasonable opportunity. 11
PART 2--INSPECTORS' POWERS 12
to places 13
Entry
489.(1) An inspector may enter a place if-- 14
(a) the occupier of the place consents to the entry; or 15
(b) the entry is authorised by a warrant; or 16
(c) it is a licensee's place of business and the entry is made when the 17
place is open for business or otherwise open for entry. 18
(2) An inspector, without the occupier's consent or a warrant, may-- 19
(a) enter a public place when the place is open to the public; or 20
(b) enter the land around premises to ask its occupier for consent to 21
enter the premises. 22
to require documents to be produced 23
Power
490.(1) An inspector may require-- 24
(a) a licensee to produce-- 25
s 490 307 s 490
Agents and Motor Dealers
(i) the licensee's licence; or 1
(ii) documents relating to the licensee's trust account; or 2
(b) a licensee or other person who has possession, custody, or 3
control of documents or things relating to the licensee's business 4
to produce the documents or things; or 5
(c) a licensee or other person to give the inspector information about 6
a produced document. 7
8
Examples of paragraph (b)--
9
1. Contracts relating to a transaction by or with the licensee in connection with
10
the licensee's business as licensee.
11
2. Motor vehicle compliance plates.
(2) The inspector may require the licensee or other person to give the 12
inspector the document, thing or information immediately or at a stated 13
reasonable place at a stated reasonable time. 14
(3) The licensee or other person must comply with a requirement under 15
subsection (1) or (2), unless the person has a reasonable excuse. 16
Maximum penalty--200 penalty units or 1 year's imprisonment. 17
(4) It is a reasonable excuse for an individual to fail to give information if 18
giving the information might tend to incriminate the individual. 19
(5) The inspector may-- 20
(a) inspect a produced document or thing; or 21
(b) audit or copy a produced document; or 22
(c) seize a document or thing if the inspector reasonably believes-- 23
(i) the document or thing is evidence of an offence against this 24
Act; and 25
(ii) the seizure is necessary to prevent-- 26
(A) the document or thing being hidden, lost or destroyed; 27
or 28
(B) the document or thing being used to commit, continue 29
or repeat an offence against this Act. 30
(6) In this section-- 31
s 491 308 s 491
Agents and Motor Dealers
"licensee" includes the following-- 1
(a) a person who was a licensee but whose licence is no longer 2
current; 3
(b) a person who is not licensed but who acts as a licensee; 4
(c) a partner of a licensee; 5
(d) a person employed, or apparently employed, by a licensee. 6
"trust account" includes any account relating to money received by a 7
licensee as a licensee. 8
9
Warrants
491.(1) An inspector may apply to a magistrate for a warrant for a place. 10
(2) The application must-- 11
(a) be sworn; and 12
(b) state the grounds on which the warrant is sought. 13
(3) The magistrate may refuse to consider the application until the 14
inspector gives the magistrate all the information the magistrate requires 15
about the application in the way the magistrate requires. 16
17
Example--
18
The magistrate may require that additional information supporting the application
19
be given by a statutory declaration.
(4) The magistrate may issue a warrant only if satisfied there are 20
reasonable grounds for suspecting-- 21
(a) there is a particular thing (the "evidence") that may provide 22
evidence of an offence against this Act; and 23
(b) the evidence is, or may be within the next 14 days, at the place. 24
(5) The warrant must state-- 25
(a) that an inspector may, with necessary and reasonable help and 26
force-- 27
(i) enter the place; and 28
(ii) exercise the inspector's powers under this Act; and 29
s 492 309 s 492
Agents and Motor Dealers
(b) the offence for which the warrant is sought; and 1
(c) the evidence that may be seized under the warrant; and 2
(d) the hours when the place may be entered; and 3
(e) the day, within 14 days after the warrant's issue, the warrant 4
ends. 5
made other than in person 6
Warrants--applications
492.(1) An inspector may apply for a warrant by phone, fax, radio or 7
another form of communication if the inspector considers it necessary 8
because of-- 9
(a) urgent circumstances; or 10
(b) other special circumstances, including for example, the 11
inspector's remote location. 12
(2) Before applying for the warrant, the inspector must prepare an 13
application that states the grounds on which the warrant is sought. 14
(3) The inspector may apply for the warrant before the application is 15
sworn. 16
(4) If the magistrate issues the warrant and it is reasonably practicable to 17
fax a copy of it to the inspector, the magistrate must immediately fax the 18
copy to the inspector. 19
(5) If the magistrate issues the warrant but it is not reasonably practicable 20
to fax a copy of it to the inspector-- 21
(a) the magistrate must-- 22
(i) tell the inspector what the terms of the warrant are; and 23
(ii) tell the inspector the date and time the warrant was signed; 24
and 25
(b) the inspector must-- 26
(i) complete a form of warrant in the same terms as the warrant 27
issued by the magistrate; and 28
(ii) write on the warrant form the name of the magistrate and the 29
date and time the magistrate signed the warrant. 30
s 493 310 s 493
Agents and Motor Dealers
(6) The facsimile warrant, or the warrant form properly completed by the 1
inspector, authorises the entry and the exercise of the other powers stated in 2
the warrant issued by the magistrate. 3
(7) The inspector must, at the first reasonable opportunity, send to the 4
magistrate-- 5
(a) the sworn application; and 6
(b) if the inspector completed a warrant form--the completed 7
warrant form. 8
(8) On receiving the application and any warrant form, the magistrate 9
must attach them to the warrant. 10
(9) Unless the contrary is proven, a court must presume that a power 11
exercised by an inspector was not authorised by a warrant under this section 12
if-- 13
(a) a question arises, in a proceeding before the court, whether the 14
exercise of power was authorised by a warrant; and 15
(b) the warrant is not produced in evidence. 16
powers in a place under a warrant 17
Inspector's
493.(1) This section applies to an inspector who enters a place under a 18
warrant.202 19
(2) The inspector may-- 20
(a) search any part of the place; or 21
(b) seize the evidence for which the warrant was issued; or 22
(c) seize a thing if the inspector reasonably believes-- 23
(i) the thing is evidence of an offence against this Act; and 24
(ii) the seizure is necessary to prevent-- 25
(A) the thing being hidden, lost or destroyed; or 26
(B) the thing being used to commit, continue or repeat an 27
offence against this Act; or 28
202 Section 489 (Entry to places)
s 494 311 s 494
Agents and Motor Dealers
(d) inspect, photograph or film the place or anything in the place; or 1
(e) copy a document in the place; or 2
(f) take into the place the persons, equipment and materials the 3
inspector reasonably requires for exercising a power under this 4
Act; or 5
(g) require a person in the place to give the inspector reasonable help 6
to exercise the powers mentioned in paragraphs (a) to (f). 7
(3) A person must comply with a requirement under subsection (2)(g), 8
unless the person has a reasonable excuse. 9
Maximum penalty for subsection (3)--200 penalty units or 1 year's 10
imprisonment. 11
after thing seized 12
Procedure
494.(1) As soon as practicable after a thing is seized by an inspector 13
under section 493, the inspector must give a receipt for it to the person from 14
whom it was seized. 15
(2) The inspector must allow a person who would be entitled to the 16
seized thing if it were not in the inspector's possession-- 17
(a) to inspect it; or 18
(b) if it is a document--to copy it. 19
(3) The inspector must return the seized thing to the person at the end 20
of-- 21
(a) 1 year; or 22
(b) if a proceeding for an offence involving it is started within 23
1 year--the proceeding and any appeal from the proceeding. 24
(4) Despite subsection (3), the inspector must return the seized thing to 25
the person if the inspector is satisfied that-- 26
(a) its retention as evidence is no longer necessary; and 27
(b) its return is not likely to result in its use in repeating the offence. 28
s 495 312 s 496
Agents and Motor Dealers
to require name and address 1
Power
495.(1) An inspector may require a person to state the person's name 2
and address if the inspector-- 3
(a) finds the person committing an offence against this Act; or 4
(b) finds the person in circumstances that lead, or has information 5
that leads, the inspector to reasonably suspect that the person has 6
committed, or assisted in the commission of, an offence against 7
this Act. 8
(2) When making the requirement, the inspector must warn the person 9
that it is an offence to fail to state the person's name and address, unless the 10
person has a reasonable excuse. 11
(3) The inspector may require the person to give evidence of the 12
correctness of the person's name or address if the inspector reasonably 13
suspects the name or address given is false. 14
(4) A person must comply with an inspector's requirement under 15
subsection (1) or (3), unless the person has a reasonable excuse. 16
Maximum penalty--200 penalty units. 17
(5) A person does not commit an offence against subsection (4) if-- 18
(a) the inspector required the person to state the person's name and 19
address on suspicion of the person having committed an offence 20
against this Act; and 21
(b) the person is not proved to have committed the offence. 22
to require information 23
Power
496.(1) This section applies if an inspector reasonably believes-- 24
(a) an offence against this Act has been committed; and 25
(b) a person may be able to give information about the offence. 26
(2) The inspector may require the person to give information about the 27
offence. 28
(3) The inspector may require the person to give the inspector the 29
information at a stated reasonable place at a stated reasonable time. 30
s 497 313 s 497
Agents and Motor Dealers
(4) The person must comply with a requirement under subsection (2) 1
or (3), unless the person has a reasonable excuse. 2
Maximum penalty--200 penalty units or 1 year's imprisonment. 3
(5) It is a reasonable excuse for an individual to fail to give information if 4
giving the information might tend to incriminate the individual. 5
PART 3--OTHER PROVISIONS ABOUT 6
ENFORCEMENT 7
of financial institution managers 8
Duties
497.(1) The manager or principal officer of an office or branch of a 9
financial institution where trust money has been deposited, whether to a 10
trust account or another account, must-- 11
(a) allow an inspector, on written demand, to inspect and copy any 12
documents relating to the account; and 13
(b) immediately a licensee's trust account is overdrawn, inform the 14
chief executive of that fact; and 15
(c) immediately there is insufficient money in a licensee's trust 16
account to meet a cheque drawn on the account, inform the chief 17
executive of-- 18
(i) the amount for which the cheque is drawn; and 19
(ii) the amount in the account. 20
Maximum penalty--200 penalty units or 1 year's imprisonment. 21
(2) In this section-- 22
"licensee" includes-- 23
(a) a former licensee; and 24
(b) a person who is not licensed but who acts as a licensee. 25
"trust account" includes any account relating to money received by a 26
licensee as a licensee. 27
s 498 314 s 499
Agents and Motor Dealers
"trust money" includes-- 1
(a) an amount that, under section 344,203 is required to be deposited 2
to a licensee's trust account; and 3
(b) an instrument for the payment of an amount mentioned in 4
paragraph (a) if the instrument may be paid into a financial 5
institution; and 6
(c) a security for an amount mentioned in paragraph (a) if title to the 7
security is transferable by delivery. 8
or obstructing inspectors 9
Threatening
498. A person must not threaten or obstruct an inspector who is 10
exercising a power under this Act, unless the person has a reasonable 11
excuse. 12
Maximum penalty--200 penalty units or 1 year's imprisonment. 13
of chief executive 14
Powers
499.(1) The chief executive may inquire about a licensee's employee. 15
(2) For subsection (1), the chief executive may-- 16
(a) ask the commissioner of the police service to give the chief 17
executive a report on the employee's criminal history; and 18
(b) if the employee has been employed or licensed in a place outside 19
Queensland in a similar capacity--ask the corresponding 20
authority in the other place to provide a report about the 21
employee's eligibility. 22
(3) The commissioner of the police service must comply with a request 23
under subsection (2)(a). 24
(4) In this section-- 25
"corresponding authority" means the entity having functions that 26
correspond to the functions of the chief executive under this Act. 27
"employee" means a restricted letting agent (employee), real estate 28
203 Section 344 (Dealing with amount on receipt)
s 500 315 s 502
Agents and Motor Dealers
salesperson, pastoral house salesperson, motor salesperson or 1
commercial agent (employee). 2
CHAPTER 13--INJUNCTIONS AND 3
UNDERTAKINGS 4
PART 1--INJUNCTIONS 5
njunctions 6
I
500. An injunction under this part may be granted by a District Court 7
against a person (the "respondent") at any other time. 8
may apply for injunction 9
Who
501. The following persons may apply to a District Court for an 10
injunction-- 11
(a) the chief executive; 12
(b) a person aggrieved by the respondent's conduct. 13
for injunction 14
Grounds
502. A District Court may grant an injunction if it is satisfied that a 15
person has engaged, or is proposing to engage, in conduct that constitutes or 16
would constitute-- 17
(a) a contravention of this Act or a code of conduct; or 18
(b) attempting to contravene this Act or a code of conduct; or 19
(c) aiding, abetting, counselling or procuring a person to contravene 20
this Act or a code of conduct; or 21
(d) inducing or attempting to induce, whether by threats, promises or 22
otherwise, a person to contravene this Act or a code of conduct; 23
or 24
s 503 316 s 504
Agents and Motor Dealers
(e) being in any way, directly or indirectly, knowingly concerned in, 1
or party to, the contravention by a person of this Act or a code of 2
conduct; or 3
(f) conspiring with others to contravene this Act or a code of 4
conduct. 5
powers for injunctions 6
Court's
503.(1) The power of a District Court to grant an injunction restraining a 7
person from engaging in conduct may be exercised-- 8
(a) whether or not it appears to the court that the person intends to 9
engage again, or to continue to engage, in conduct of that kind; 10
and 11
(b) whether or not the person has previously engaged in conduct of 12
that kind. 13
(2) The power of the court to grant an injunction requiring a person to do 14
an act or thing may be exercised-- 15
(a) whether or not it appears to the court that the person intends to fail 16
again, or to continue to fail, to do the act or thing; and 17
(b) whether or not the person has previously failed to do the act or 18
thing. 19
(3) An interim injunction may be granted under this part until the 20
application is finally decided. 21
(4) A final injunction may, by consent of the parties, be granted under 22
this section without proof that proper grounds for the injunction exist. 23
(5) A District Court may rescind or vary an injunction at any time. 24
of injunction 25
Terms
504.(1) A District Court may grant an injunction in the terms the court 26
considers appropriate. 27
(2) Without limiting the court's power under subsection (1), an 28
injunction may be granted restraining a person from carrying on a business 29
as a licensee (whether or not the person is licensed or the business is carried 30
s 505 317 s 506
Agents and Motor Dealers
on as part of, or incidental to, the carrying on of another business)-- 1
(a) for a stated period; or 2
(b) except on stated terms and conditions. 3
(3) Also, the court may grant an injunction requiring a person to take 4
stated action (including action to disclose information or publish 5
advertisements) to remedy any adverse consequences of the person's 6
contravention of this Act or a code of conduct. 7
as to costs 8
Undertakings
505. If the chief executive applies for an injunction under this part, no 9
undertaking as to damages or costs may be required. 10
PART 2--UNDERTAKINGS 11
executive may seek undertaking after contravention 12
Chief
506.(1) If the chief executive reasonably believes a person has 13
contravened or been involved in a contravention of this Act or a code of 14
conduct, the chief executive may, by written notice given to the person-- 15
(a) state the act or omission the chief executive reasonably believes is 16
the contravention; and 17
(b) ask the person to give the chief executive a written undertaking 18
that the person will not continue or repeat the act or omission. 19
(2) If-- 20
(a) the person gives the undertaking and, if the contravention is 21
conduct consisting of a series of acts or omissions, the person 22
stops the conduct; and 23
(b) the chief executive accepts the undertaking; 24
the chief executive can not start an offence proceeding against the person for 25
the contravention, unless the chief executive withdraws the undertaking 26
under section 507. 27
s 507 318 s 508
Agents and Motor Dealers
and withdrawal of undertakings 1
Variation
507.(1) If the chief executive accepts an undertaking under section 506, it 2
may be varied or withdrawn at any time by-- 3
(a) the person who gave it, but only if the chief executive agrees to 4
the variation or withdrawal; or 5
(b) the chief executive, if the chief executive reasonably believes that 6
before it was accepted-- 7
(i) the person who gave it contravened this Act in a way 8
unknown to the chief executive; and 9
(ii) had the chief executive known about the contravention, the 10
chief executive would not have accepted the undertaking or 11
would not have accepted it unless its terms were changed. 12
(2) The chief executive may also withdraw the undertaking if the chief 13
executive reasonably believes it is no longer necessary. 14
(3) If the chief executive varies or withdraws, or agrees to the variation or 15
withdrawal of, the undertaking, the chief executive must give the person 16
who gave it written notice of its variation or withdrawal. 17
(4) The variation or withdrawal takes effect when written notice of the 18
variation or withdrawal is given. 19
of undertakings 20
Enforcement
508.(1) If the chief executive reasonably believes a person has 21
contravened a term of an undertaking, the chief executive may apply to a 22
District Court for an order under this section. 23
(2) If the court is satisfied that the person has contravened the term, the 24
court may make 1 or more of the following orders-- 25
(a) an order directing the person to comply with the term; 26
(b) an order directing the person to pay to the State an amount that is 27
not more than the direct or indirect financial benefit obtained by 28
the person from, and reasonably attributable to, the contravention; 29
(c) an order directing the person to pay compensation to someone 30
else who has suffered loss or damage because of the 31
contravention; 32
s 509 319 s 510
Agents and Motor Dealers
(d) an order directing the person to give a security bond to the State 1
for a stated period; 2
(e) another order the court considers appropriate. 3
(3) A District Court may order the forfeiture to the State of all or part of a 4
security bond given by a person under subsection (2)(d) if-- 5
(a) the chief executive applies to the court for the order; and 6
(b) the court is satisfied that the person contravened the undertaking 7
during the period for which the bond was given. 8
of undertakings 9
Register
509.(1) The chief executive must keep a register of each undertaking 10
given to the chief executive by a person under this part. 11
(2) The register must contain a copy of the undertaking. 12
(3) A person may, on payment of the fee prescribed under a regulation-- 13
(a) inspect the register at the department's head office when the office 14
is open to the public; and 15
(b) obtain a copy of an undertaking in the register. 16
CHAPTER 14--GENERAL OFFENCES, 17
EVIDENTIARY MATTERS AND LEGAL 18
PROCEEDINGS 19
PART 1--GENERAL OFFENCES 20
conversion and false accounts 21
Wrongful
510.(1) This section applies if a licensee, in the performance of the 22
licensee's functions, receives an amount belonging to someone else. 23
(2) A licensee who-- 24
s 511 320 s 512
Agents and Motor Dealers
(a) dishonestly converts the amount to the licensee's own or 1
someone else's use; or 2
(b) dishonestly renders an account of the amount knowing it to be 3
false in a material particular; 4
commits a crime. 5
Maximum penalty--1 000 penalty units or 5 years imprisonment. 6
(3) For a prosecution under subsection (2)(a), it is enough for the 7
prosecution to prove that the licensee dishonestly converted an amount in 8
the licensee's trust account to the licensee's own use or someone else's use 9
without having to prove that the amount belonged to a particular person. 10
and summary offences 11
Indictable
511. An offence against this Act, other than an offence against 12
section 510, is a summary offence. 13
for an offence against s 510 14
Proceedings
512.(1) A proceeding for an offence against section 510 may be taken, at 15
the prosecution's election-- 16
(a) by way of summary proceedings under the Justices Act 1886; or 17
(b) on indictment. 18
(2) A magistrate must not hear a charge for the offence summarily if-- 19
(a) the defendant asks at the start of the hearing that the charge be 20
prosecuted on indictment; or 21
(b) the magistrate considers that the charge should be prosecuted on 22
indictment. 23
(3) If subsection (2) applies-- 24
(a) the magistrate must proceed by way of an examination of 25
witnesses for an indictable offence; and 26
(b) a plea of the person charged at the start of the proceeding must be 27
disregarded; and 28
(c) evidence brought in the proceeding before the magistrate decided 29
s 513 321 s 513
Agents and Motor Dealers
to act under subsection (2) is taken to be evidence in the 1
proceeding for the committal of the person for trial or sentence; 2
and 3
(d) before committing the person for trial or sentence, the magistrate 4
must make a statement to the person as required by the Justices 5
Act 1886, section 104(2)(b).204 6
(4) The maximum penalty that may be summarily imposed for an 7
offence against section 510 is 200 penalty units or 3 years imprisonment. 8
representations about property 9
False
513.(1) A licensee or salesperson must not represent in any way to 10
someone else anything that is false or misleading about property that the 11
licensee has for letting, sale or auction. 12
Maximum penalty--200 penalty units or 2 years imprisonment. 13
(2) Without limiting subsection (1), a representation is taken, for the 14
subsection, to be false or misleading if it would reasonably tend to lead to a 15
belief in the existence of a state of affairs that does not in fact exist, whether 16
or not the representation indicates that that state of affairs does exist. 17
(3) It is a defence to a prosecution under subsection (1) for the defendant 18
to prove that the defendant believed on reasonable grounds that the 19
representation was true or not misleading. 20
(4) It is not a defence to a prosecution under subsection (1) for the 21
defendant to prove that an agreement with the person was rescinded or that 22
the person did not enter into an agreement because of the representation. 23
(5) This section does not limit another Act or law about false or 24
misleading representations. 25
(6) In this section-- 26
"licensee" means a restricted letting agent, real estate agent, pastoral house, 27
pastoral house manager, pastoral house auctioneer, auctioneer or motor 28
204 Section 104 (Proceedings upon an examination of witnesses in relation to an
indictable offence)
s 514 322 s 514
Agents and Motor Dealers
dealer and includes a person who-- 1
(a) does not hold a licence as a restricted letting agent, real estate 2
agent, pastoral house, pastoral house manager, pastoral house 3
auctioneer, auctioneer or motor dealer; and 4
(b) holds out that the person performs the functions of a licensee in 5
the carrying on of a business. 6
"salesperson" means a restricted letting agent (employee), real estate 7
salesperson, pastoral house salesperson or motor salesperson. 8
with odometers 9
Tampering
514.(1) A person must not tamper with a motor vehicle's odometer with 10
intent to falsely represent that, at a particular time, the vehicle-- 11
(a) has travelled a distance less than a specified distance; or 12
(b) has travelled a distance more than a specified distance. 13
Maximum penalty--200 penalty units or 2 years imprisonment. 14
(2) If a court finds a person guilty of an offence against subsection (1), 15
the court may, on its own initiative or on the application of the prosecution 16
or a person who has suffered loss, order the person who committed the 17
offence to compensate the person who suffered loss for loss resulting from 18
the commission of the offence. 19
(3) In any proceeding, the distance shown at any time on the odometer 20
tampered with is evidence of a false representation by the person who 21
tampered with the odometer that the vehicle-- 22
(a) has travelled a distance less than a specified distance shown on 23
the odometer; or 24
(b) has travelled a distance more than a specified distance shown on 25
the odometer. 26
(4) Subsection (2) does not limit a court's powers under the Penalties 27
and Sentences Act 1992 or any other law. 28
s 515 323 s 516
Agents and Motor Dealers
to charge fee for providing documents etc. 1
Offence
515.(1) A licensee or a licensee's employee must not charge a fee for the 2
provision, preparation or completion of a document for a transaction 3
relating to, or arising out of, the performance of a licensee's functions. 4
Maximum penalty--200 penalty units or 1 year's imprisonment. 5
(2) Subsection (1) does not limit the Legal Practitioners Act 1995, 6
section 19205 or the Queensland Law Society Act 1952, section 39.206 7
(3) This section does not apply to the provision of a security interest 8
certificate under section 232 or 280(4).207 9
to ask for, or receive, excess or improper remuneration 10
Offence
516.(1) If an amount is prescribed under a regulation as the maximum 11
amount allowed to a licensee for the performance of a licensee's functions 12
in relation to a stated transaction, a licensee must not ask for, or receive, a 13
commission or reward for the transaction greater than the amount allowed 14
under the regulation. 15
Maximum penalty--200 penalty units or 1 year's imprisonment. 16
(2) If, in a proceeding under this section, an amount is alleged to be 17
payable to the licensee for recouping expenditure lawfully incurred by the 18
licensee in connection with the transaction, the licensee must establish to the 19
court's satisfaction, on the balance of probabilities, that the expenditure was 20
lawfully incurred. 21
(3) If a licensee is convicted of an offence against subsection (1) or fails 22
to satisfy the court under subsection (2) about expenditure incurred, the 23
convicting court must also order the licensee to refund the amount to which 24
the licensee was not entitled to the person from whom it was obtained. 25
(4) This section has effect despite any arrangement to the contrary. 26
205 Section 19 (Conveyancing how prohibited)
206 Section 39 (Persons practising without certificates)
207 Section 232 (Guarantee for title of motor vehicles) or section 280 (Guarantee of
title)
s 517 324 s 519
Agents and Motor Dealers
to fail to comply with court order 1
Offence
517.(1) A licensee must comply with a court order requiring the licensee 2
to do something or refrain from doing something within the time stated in 3
the order or, if no time is stated, within 14 days after the making of the 4
order. 5
Maximum penalty--200 penalty units or 2 years imprisonment. 6
(2) A conviction for an offence against subsection (1) does not affect a 7
right or remedy a person may have against the licensee under the order. 8
to deal with trust account 9
Offence
518. A person must not operate a licensee's trust account unless the 10
person is-- 11
(a) the licensee; or 12
(b) a person actually employed by the licensee and authorised by the 13
licensee to operate on the trust account; or 14
(c) otherwise permitted under this Act to operate on the licensee's 15
trust account. 16
Maximum penalty--200 penalty units or 3 years imprisonment. 17
to lend or borrow licence 18
Offence
519.(1) A licensee must not-- 19
(a) lend or hire out the licensee's licence to someone else; or 20
(b) notify or advertise that a licence is available for sale, loan or hire, 21
or on another basis, to someone else, whether licensed or not; or 22
(c) permit or allow someone else to hold out that the person is the 23
holder of the licence issued to the licensee. 24
Maximum penalty--200 penalty units or 2 years imprisonment. 25
(2) A person must not borrow, hire or buy a licensee's licence. 26
Maximum penalty--200 penalty units or 2 years imprisonment. 27
(3) If a person who is not the holder of an appropriate licence or the 28
licensee's substitute has the effective or apparent management or control of 29
s 520 325 s 521
Agents and Motor Dealers
a licensee's business, the licensee is taken to have lent, and the person is 1
taken to have borrowed, the licensee's licence. 2
(4) In this section-- 3
"permit" includes allow. 4
or misleading statements 5
False
520.(1) A person must not, for this Act, state anything to an official the 6
person knows is false or misleading in a material particular. 7
Maximum penalty--200 penalty units or 2 years imprisonment. 8
(2) In this section-- 9
"official" means the chief executive, an inspector or another person in the 10
department in which this Act is administered. 11
or misleading documents 12
False
521.(1) A person must not, for this Act, give an official a document 13
containing information the person knows is false or misleading in a material 14
particular. 15
Maximum penalty--200 penalty units or 2 years imprisonment. 16
(2) Subsection (1) does not apply to a person if the person, when giving 17
the document-- 18
(a) informs the official, to the best of the person's ability, how it is 19
false or misleading; and 20
(b) if the person has, or can reasonably obtain, the correct 21
information--gives the correct information. 22
(3) A person must not make an entry in a document required or 23
permitted to be made or kept under this Act knowing the entry to be false or 24
misleading in a material particular. 25
Maximum penalty--200 penalty units or 2 years imprisonment. 26
(4) In this section-- 27
"official" means the chief executive, an inspector, another person in the 28
s 522 326 s 522
Agents and Motor Dealers
department in which this Act is administered or a member of an agents 1
and motor dealers board. 2
practices 3
Prohibited
522.(1) A person must not, for reward, supply, or undertake to supply, 4
or advertise or hold out in any way that the person will supply to any person 5
addresses or other particulars of-- 6
(a) houses that are to let; or 7
(b) houses, land or estates that are for sale. 8
Maximum penalty--200 penalty units or 1 year's imprisonment. 9
(2) Subsection (1) does not apply to a real estate agent or pastoral house 10
that has been appointed by the landlords or sellers of the houses, land or 11
estates to perform a function and has the landlord's or seller's consent to 12
supply the particulars. 13
(3) A person must not display photographs of real property for sale for 14
someone else or supply particulars of the property (other than in a 15
newspaper) unless-- 16
(a) the person is a real estate agent or pastoral house; and 17
(b) the person has been properly appointed to sell the property; and 18
(c) the photograph is displayed or the particulars are supplied free of 19
charge. 20
Maximum penalty--200 penalty units. 21
(4) In this section-- 22
"newspaper" see the Printing and Newspapers Act 1981, section 5.208 23
208 Section 5 defines "newspaper" to include a paper or pamphlet containing any
public news, intelligence, occurrences or any remarks or observations thereon or
upon any political matter, printed for sale or distribution, and published
periodically or in parts or numbers at intervals not exceeding 31 days between
the publication of any 2 such papers or pamphlets or parts or numbers, but does
not include any document published in the cause of his or her duty by the
Government Printer, or any paper containing only matter wholly of a commercial
nature.
s 523 327 s 524
Agents and Motor Dealers
ART 2--EVIDENTIARY MATTERS 1
P
of tampering by a motor dealer 2
Evidence
523.(1) Evidence that a motor vehicle's odometer was tampered with to 3
reduce the distance shown on the odometer when the vehicle was in a motor 4
dealer's possession is evidence that the dealer contravened 5
section 514(1)(a).209 6
(2) For subsection (1), it is enough to prove that a motor vehicle's 7
odometer reading shortly after a motor dealer had possession of the vehicle 8
was less than its reading when the dealer took possession of the vehicle. 9
(3) Evidence that a motor vehicle's odometer was tampered with to 10
increase the distance shown on the odometer when the vehicle was in a 11
motor dealer's possession is evidence that the dealer contravened 12
section 514(1)(b). 13
(4) In this section-- 14
"possession", of a motor vehicle, includes custody and control of the 15
vehicle. 16
false representation--tampered with odometer 17
Continuing
524.(1) This section applies, in any proceeding, if there is evidence that a 18
person intentionally tampered with the odometer of a motor vehicle so that 19
it showed that the vehicle at that time-- 20
(a) had not travelled the distance shown on the odometer before it 21
was tampered with; or 22
(b) had travelled more than the distance shown on the odometer 23
before it was tampered with. 24
(2) The distance shown at any time afterwards on the odometer is 25
evidence of a false representation by a person at that later time that-- 26
(a) for a proceeding mentioned in subsection (1)(a)--the vehicle had 27
not travelled more than the distance shown on the odometer; or 28
209 Section 514 (Tampering with odometers)
s 525 328 s 525
Agents and Motor Dealers
(b) for a proceeding mentioned in subsection (1)(b)--the vehicle had 1
travelled more than the distance shown on the odometer. 2
provisions 3
Evidentiary
525.(1) This section applies to a proceeding under this Act. 4
(2) The appointment or power of an inspector must be presumed unless 5
a party, by reasonable notice, requires proof of-- 6
(a) the appointment; or 7
(b) the power to do anything under this Act. 8
(3) A signature purporting to be the signature of the chief executive, the 9
register, a member of an agents and motor dealers board or an inspector is 10
evidence of the signature it purports to be. 11
(4) A certificate purporting to be signed by a person mentioned in 12
subsection (3) and stating any of the following matters is evidence of the 13
matter-- 14
(a) a stated document is-- 15
(i) an order, direction, requirement or decision, or a copy of an 16
order, direction, requirement or decision, given or made 17
under this Act; or 18
(ii) a notice, or a copy of a notice, given under this Act; or 19
(iii) a record, or a copy of a record, kept under this Act; or 20
(iv) a document, or a copy of a document, kept under this Act; 21
(b) on a stated day, a stated person-- 22
(i) was, or was not, the holder of a stated licence under this Act; 23
or 24
(ii) was given a stated notice, order, requirement or direction 25
under this Act; 26
(c) another matter prescribed under a regulation. 27
s 526 329 s 528
Agents and Motor Dealers
in licensee's books 1
Entries
526. An entry in a book kept by or belonging to a licensee or found in the 2
licensee's premises is evidence that the entry has been made by or with the 3
authority of the licensee. 4
ART 3--PROCEEDINGS 5
P
on time for starting proceedings 6
Limitation
527. A proceeding for an offence against this Act must start-- 7
(a) within 1 year after the commission of the offence; or 8
(b) within 6 months after the offence comes to the complainant's 9
knowledge, but within 3 years after the commission of the 10
offence. 11
for acts or omissions of representatives 12
Responsibility
528.(1) In this section-- 13
"representative" means-- 14
(a) of a corporation--an executive officer, employee or agent of the 15
corporation; or 16
(b) of an individual--an employee or agent of the individual. 17
"state of mind", of a person, includes-- 18
(a) the person's knowledge, intention, opinion, belief or purpose; and 19
(b) the person's reasons for the intention, opinion, belief or purpose. 20
(2) Subsections (3) and (4) apply in a proceeding for an offence against 21
this Act. 22
(3) If it is relevant to prove a person's state of mind about a particular act 23
or omission, it is enough to show-- 24
(a) the act was done or omitted to be done by a representative of the 25
person within the scope of the representative's actual or apparent 26
s 529 330 s 530
Agents and Motor Dealers
authority; and 1
(b) the representative had the state of mind. 2
(4) An act done or omitted to be done for a person by a representative of 3
the person within the scope of the representative's actual or apparent 4
authority is taken to have been done or omitted to be done also by the 5
person, unless the person proves the person could not, by the exercise of 6
reasonable diligence, have prevented the act or omission. 7
officers must ensure corporation complies with Act 8
Executive
529.(1) The executive officers of a corporation must ensure that the 9
corporation complies with this Act. 10
(2) If a corporation commits an offence against a provision of this Act, 11
each of the executive officers of the corporation also commit an offence, 12
namely, the offence of failing to ensure that the corporation complies with 13
this Act. 14
Maximum penalty--the penalty for the contravention of the provision by an 15
individual. 16
(3) Evidence that the corporation has committed an offence against this 17
Act is evidence that each of the executive officers committed the offence of 18
failing to ensure that the corporation complies with this Act. 19
(4) However, it is a defence for an executive officer to prove that-- 20
(a) if the officer was in a position to influence the conduct of the 21
corporation in relation to the offence--the officer took all 22
reasonable steps to ensure the corporation complied with the 23
provision; or 24
(b) the officer was not in a position to influence the conduct of the 25
corporation in relation to the offence. 26
of court 27
Power
530.(1) A court may, in addition to any other penalty it may impose, 28
order that a licensee's licence be suspended for a stated period or cancelled 29
if the licensee has been convicted of an offence against this Act. 30
(2) The court may also order that a person convicted of an offence 31
s 531 331 s 533
Agents and Motor Dealers
against this Act be disqualified from holding a licence under this Act for a 1
stated period or permanently. 2
(3) The court may make an order under subsection (1) or (2)-- 3
(a) on the chief executive's application; or 4
(b) on its own initiative. 5
(4) If an order is made by a court under this section on the court's own 6
initiative, the court must cause a copy of the order to be given to the chief 7
executive. 8
of false or misleading representations or statements etc. 9
Allegations
531. In any proceeding for an offence against this Act defined as 10
involving a false or misleading statement, representation or entry, or false or 11
misleading information, it is enough for a charge to state that the statement, 12
representation, entry or information was `false or misleading'. 13
CHAPTER 15--APPEALS 14
against decisions of chief executive 15
Appeals
532. A person (an "appellant") aggrieved by a decision of the chief 16
executive made under a provision specified in schedule 1, part 1 may appeal 17
against the decision to a Magistrates Court under this part. 18
against decisions of registrar 19
Appeals
533. A person (also an "appellant") aggrieved by a decision of the 20
registrar made under section 452210 may appeal against the decision to a 21
Magistrates Court under this part. 22
210 Section 452 (Deciding claims--registrar)
s 534 332 s 536
Agents and Motor Dealers
against decisions of agents and motor dealers board 1
Appeals
534. A person (also an "appellant") aggrieved by an order of an agents 2
and motor dealers board made under a provision specified in schedule 1, 3
part 2 may appeal to a Magistrates Court under this part. 4
to start appeal 5
How
535.(1) An appeal is started by the appellant-- 6
(a) filing a written notice of appeal with the clerk of the court of the 7
Magistrates Court nearest the place where the appellant resides or 8
carries on, or proposes to carry on, business or employment; and 9
(b) giving a copy of the notice to the chief executive. 10
(2) The notice of appeal must be filed within 28 days after the appellant 11
receives notice of the decision appealed against. 12
(3) The court may at any time extend the period for filing the notice of 13
appeal. 14
(4) The notice of appeal must state the grounds of the appeal. 15
of operation of decisions 16
Stay
536.(1) A Magistrates Court has power to grant a stay of a decision, 17
other than a decision made under section 77, 78 or 379,211 appealed against 18
for the purpose of securing the effectiveness of the appeal. 19
(2) A stay-- 20
(a) may be granted on conditions that the court considers appropriate; 21
and 22
(b) has effect for the period specified by the court; and 23
(c) may be revoked or amended by the court. 24
(3) The period of a stay specified by the court must not extend past the 25
time when the court decides the appeal. 26
211 Section 77 (Immediate suspension), 78 (Immediate cancellation) or 379 (Chief
executive may freeze licensee's accounts in particular cases)
s 537 333 s 538
Agents and Motor Dealers
(4) An appeal against a decision does not affect the operation or carrying 1
out of the decision unless the decision is stayed. 2
procedures 3
Hearing
537.(1) The procedure for an appeal to a Magistrates Court under this 4
Act is to be in accordance with-- 5
(a) the rules of court for Magistrates Courts; or 6
(b) in the absence of relevant rules--directions of a Magistrates 7
Court. 8
(2) An appeal is to be by way of rehearing, unaffected by the original 9
decision maker's decision. 10
(3) In deciding an appeal, a Magistrates Court-- 11
(a) is not bound by the rules of evidence; and 12
(b) must observe natural justice; and 13
(c) may hear the appeal in court or chambers. 14
of court on appeal 15
Powers
538.(1) In deciding an appeal, a Magistrates Court may-- 16
(a) confirm the decision appealed against; or 17
(b) set aside the decision and substitute another decision; or 18
(c) set aside the decision and return the matter to the original 19
decision-maker with directions that the court considers 20
appropriate. 21
(2) In substituting another decision, the court has the same powers as the 22
original decision-maker. 23
24
Example--
25
The court may decide that an unsuccessful applicant for a licence be granted the
26
licence either unconditionally or on particular conditions.
(3) If the court substitutes another decision, the substituted decision is 27
taken to be the decision of the original decision-maker. 28
(4) The court may make an order for costs it considers appropriate. 29
s 539 334 s 540
Agents and Motor Dealers
to District Court on questions of law only 1
Appeal
539.(1) An appellant aggrieved by the decision of a Magistrates Court 2
may appeal to a District Court, but only on a question of law. 3
(2) On hearing the appeal, the court may make the order for costs it 4
considers appropriate. 5
HAPTER 16--GENERAL 6
C
of ineligible persons 7
Register
540.(1) The chief executive must keep a register of persons who are not 8
eligible to be employed as restricted letting agents (employee), real estate 9
salespersons, pastoral house salespersons, motor salespersons or 10
commercial agents (employee) ("register of ineligible persons"). 11
(2) The chief executive must enter in the register the name, and the other 12
details that may be prescribed under a regulation, of each of the following 13
persons-- 14
(a) a person declared by an agents and motor dealers board to be an 15
ineligible person; 16
(b) a person declared by a Magistrates Court or another court to be an 17
ineligible person; 18
(c) a person disqualified from holding a certificate of registration 19
under the repealed Act. 20
(3) If a person whose name is entered in the register stops being 21
ineligible for employment as a restricted letting agent (employee), real estate 22
salesperson, pastoral house salesperson, motor salesperson or commercial 23
agent (employee), the chief executive must immediately remove the 24
person's name and details from the register. 25
(4) A person may, on payment of any fee that may be prescribed under a 26
regulation-- 27
(a) request a search of, or for, an entry in the register at the 28
department's head office when it is open to the public; and 29
s 541 335 s 544
Agents and Motor Dealers
(b) obtain a copy of details of the entry. 1
(5) The register-- 2
(a) may be a mechanical, electronic or other device suitable for 3
containing information or documents; and 4
(b) may contain information or documents in a physical, electronic, 5
digital or other form. 6
(6) In this section-- 7
"contain" includes record and store. 8
remedies not affected 9
Civil
541. Nothing in this Act affects or limits any civil remedy that a person 10
may have against a licensee or another person in relation to any matter. 11
(Confiscation) Act 1989 not limited 12
Crimes
542. Nothing in this Act limits the Crimes (Confiscation) Act 1989. 13
14
Delegation
543.(1) The chief executive may delegate the chief executive's powers to 15
an appropriately qualified officer of the department. 16
(2) In subsection (1)-- 17
"appropriately qualified" includes having the qualifications, experience or 18
standing appropriate to exercise the power. 19
20
Example of `standing'--
21
The level at which a person is employed within the department.
from liability 22
Protection
544.(1) An official is not civilly liable for an act done, or omission made, 23
honestly and without negligence under this Act. 24
(2) If subsection (1) prevents a civil liability attaching to the person, the 25
liability attaches instead to the State. 26
s 545 336 s 546
Agents and Motor Dealers
(3) This section does not limit section 462.212 1
(4) In this section-- 2
"official" means-- 3
(a) the Minister; or 4
(b) the chief executive; or 5
(c) an inspector; or 6
(d) a person acting under the direction of an inspector; or 7
(e) an officer of the department. 8
of forms 9
Approval
545. The chief executive may approve forms for use under this Act. 10
power 11
Regulation-making
546.(1) The Governor in Council may make regulations under this Act. 12
(2) Without limiting subsection (1), a regulation may be made about the 13
following-- 14
(a) fees, including the refunding of fees; 15
(b) imposing a penalty for a contravention of a regulation of not more 16
than 50 penalty units; 17
(c) the audit of trust accounts and documents; 18
(d) the keeping or destruction of motor vehicle identifiers, including, 19
for example, compliance plates; 20
(e) imposing time limits within which a del credere agent must pay 21
the purchase price of livestock the agent is authorised to sell to the 22
seller of the livestock; 23
(f) the financial or insurance protection requirements for del credere 24
agents; 25
(g) imposing limits on out-of-pocket expenses incurred in the 26
212 Section 462 (Chief executive not liable for payments from fund)
s 547 337 s 550
Agents and Motor Dealers
performance of functions under a licence; 1
(h) the keeping of records, including the form in which a record is 2
kept; 3
(i) the keeping of receipts and evidence of expenditure; 4
(j) the length of time a document required to be kept under this Act 5
is to be kept. 6
amended in sch 2 7
Act
547. Schedule 2213 amends the Act mentioned in it. 8
repealed 9
Act
548. The Auctioneers and Agents Act 1971 is repealed. 10
CHAPTER 17--TRANSITIONAL AND SAVINGS 11
for ch 17 12
Definitions
549. In this chapter-- 13
"commencement" means commencement of this section. 14
"committee" means the auctioneers and agents committee established 15
under the repealed Act. 16
"former fund" means the auctioneers and agents fidelity guarantee fund 17
established under the repealed Act. 18
fund 19
Former
550.(1) On the commencement, an amount held in the former fund 20
immediately before the commencement is taken to be held in the fidelity 21
guarantee fund. 22
213 Schedule 2 (Consequential amendments)
s 551 338 s 552
Agents and Motor Dealers
(2) The rights and liabilities of the former fund are taken to be the rights 1
and liabilities of the fidelity guarantee fund. 2
(3) A claim that has been made against the former fund, and not finished 3
before the commencement, continues as if it were a claim against the 4
fidelity guarantee fund under this Act. 5
(4) If, before the commencement, a person could have made a claim 6
against the former fund but did not make the claim, the person may make 7
the claim against the fidelity guarantee fund under this Act. 8
(5) If, before the commencement, the committee had started a proceeding 9
to recover an amount paid out of the former fund, the proceeding is taken to 10
have been started by the chief executive as if the amount had been paid out 11
of the fidelity guarantee fund. 12
(6) If, had the repealed Act not been repealed, the committee could start a 13
proceeding to recover an amount paid out of the former fund, the chief 14
executive may start the proceeding as if the amount had been paid out of the 15
fidelity guarantee fund. 16
of committee 17
Subrogation
551.(1) This section applies if, immediately before the commencement, 18
the committee was subrogated, to a particular extent, to the rights and 19
remedies of a claimant who claimed against the former fund and whose 20
claim has been settled by payment out of the former fund. 21
(2) The chief executive is taken to be subrogated, to the same extent, to 22
the claimant's rights and remedies. 23
(3) An agreement entered into or anything else done by the committee 24
under the subrogation is taken to have been entered into or done by the chief 25
executive. 26
pastoral house employees and registered commercial 27
Existing
subagents and salespersons 28
552.(1) This section applies to-- 29
(a) a person who is employed by a licensee under the repealed Act 30
and who-- 31
s 552 339 s 552
Agents and Motor Dealers
(i) immediately before the commencement, held a certificate of 1
registration as a real estate salesperson, motor salesperson or 2
commercial subagent under the repealed Act; or 3
(ii) had the repealed Act not been repealed, would have been 4
entitled to apply for restoration of the person's registration as 5
a real estate salesperson, motor salesperson or commercial 6
subagent under the repealed Act within 3 months after the 7
commencement and the registration would have been 8
restored; or 9
(b) a person who is employed immediately before the 10
commencement by a pastoral house corporation licensee under 11
the repealed Act. 12
(2) A person mentioned in column 1 of the following table is taken to be 13
employed as a person mentioned in column 2 of the table opposite the 14
column 1 person-- 15
Table 16
column 1 column 2
real estate salesperson real estate salesperson or restricted
letting agent (employee)
motor salesperson motor salesperson
commercial subagent commercial agent (employee)
pastoral house salesperson pastoral house salesperson.
(3) The person is taken to be eligible for employment while the 17
employment continues. 18
(4) Section 89, 113, 161, 263 or 313214 of this Act does not apply to the 19
person's employer while the person's employment continues with the 20
employer. 21
214 Section 89 (Employment as restricted letting agent (employee)),
113 (Employment as real estate salespersons), 161 (Employment as pastoral
house salespersons), 263 (Employment as motor salespersons) or
313 (Employment as commercial agent (employee))
s 553 340 s 554
Agents and Motor Dealers
substitute licensees 1
Existing
553.(1) This section applies to a substitute licensee whose appointment 2
as a substitute licensee was approved before the commencement. 3
(2) The appointment is taken to have been made under this Act and to be 4
subject to the same conditions as the conditions on which it was made 5
under the repealed Act. 6
licences 7
Existing
554.(1) This section applies to a person who, immediately before the 8
commencement held a licence mentioned in column 1 of the following table 9
(a "column 1 licence")-- 10
Table 11
column 1 column 2
commercial agent's licence agents and motor dealers licence
(commercial agent)
corporation licence (with a director agents and motor dealers licence 12
holding a real estate agent's licence) (real estate)
corporation licence (with a director agents and motor dealers licence 13
holding a restricted real estate (restricted letting agent) 14
agent's licence)
corporation licence (with a director agents and motor dealers licence 15
holding a general auctioneer's (auctioneer) 16
licence)
corporation licence (with a director agents and motor dealers licence 17
holding a restricted auctioneer's (auctioneer) 18
licence)
corporation licence (with a director agents and motor dealers licence 19
holding a commercial agent's (commercial agent) 20
licence)
corporation licence (with a director agents and motor dealers licence 21
holding a motor dealer's licence) (motor dealer)
general auctioneer's licence agents and motor dealers licence
(auctioneer)
s 554 341 s 554
Agents and Motor Dealers
manager's (commercial agency) agents and motor dealers licence 1
licence (commercial agent)
manager's (motor dealing) licence agents and motor dealers licence
(motor dealer)
manager's (real estate agency) agents and motor dealers licence 2
licence (real estate)
motor dealer's licence agents and motor dealers licence
(motor dealer)
pastoral house auctioneer's licence agents and motor dealers licence
(pastoral house auctioneer)
pastoral house corporation licence agents and motor dealers licence
(pastoral house)
pastoral house director's licence agents and motor dealers licence
(pastoral house director)
pastoral house manager's licence agents and motor dealers licence
(pastoral house manager)
provisional auctioneer's licence agents and motor dealers licence
(trainee auctioneer)
real estate agent's licence agents and motor dealers licence
(real estate)
restricted auctioneer's licence agents and motor dealers licence
(auctioneer)
restricted real estate agent's licence agents and motor dealers licence
(restricted letting agent)
(2) The person is taken to be-- 3
(a) a suitable and eligible person to hold a licence mentioned in 4
column 2 of the table (a "column 2 licence") shown opposite the 5
column 1 licence; and 6
(b) to be the holder of the column 2 licence. 7
(3) If the licence held by the person immediately before the 8
commencement was subject to a condition, the licence the person is taken to 9
hold after the commencement is also taken to be subject to the condition. 10
s 555 342 s 556
Agents and Motor Dealers
(4) If, apart from subsection (2)(a), the person would, on the 1
commencement, not have been suitable to hold the column 2 licence 2
because of a matter or event that happened before the person's licence was 3
last granted, renewed or restored, the matter or event may be disregarded 4
for the purposes of renewal or restoration of the licence after the 5
commencement. 6
applications 7
Existing
555.(1) An application made under the repealed Act and not decided on 8
the commencement must be decided under this Act. 9
(2) If the application is about a column 1 licence, the application is taken 10
to be about a column 2 licence shown opposite the column 1 licence. 11
(3) Subject to subsection (4), if the application is about the issue, renewal 12
or restoration of a licence, the provisions of this Act about issuing, 13
renewing, or restoring licences apply to the application. 14
15
Examples of provisions that apply to the application--
16
· section 22 (Applicant must advertise intention to apply for licence)
17
· section 23 (Application for licence).
(4) The provisions of this Act dealing with making the application in the 18
approved form and paying the application fee do not apply to the 19
application. 20
objections 21
Existing
556.(1) This section applies if an application for the grant, renewal or 22
restoration of a licence has been made, but not decided, under the repealed 23
Act. 24
(2) An objection about the grant, renewal or restoration made under the 25
repealed Act with or without the Minister's approval before the 26
commencement is taken to have been made about the issue, renewal or 27
restoration of the licence under this Act. 28
(3) The chief executive must have regard to the objection when 29
considering the application. 30
s 557 343 s 561
Agents and Motor Dealers
exemptions 1
Existing
557.(1) If, immediately before the commencement, a person was 2
exempted from a provision of the repealed Act for which there is an 3
equivalent provision under this Act, the person is taken to be exempted 4
from the equivalent provision under this Act. 5
(2) If the exemption under the repealed Act was subject to a condition, 6
the exemption from the equivalent provision under this Act is also taken to 7
be subject to the condition. 8
approved financial institutions 9
Existing
558. A financial institution that was an approved financial institution 10
under the repealed Act immediately before the commencement, is taken to 11
be an approved financial institution under this Act. 12
agreements with financial institutions 13
Existing
559.(1) This section applies to an agreement entered into between the 14
registrar and an approved financial institution under the repealed Act about 15
the keeping of general trust accounts by licensees. 16
(2) The agreement is taken to be an agreement entered into between the 17
chief executive and a financial institution about the keeping of general trust 18
accounts by licensees under this Act. 19
(3) References in the agreement to the registrar are taken to be references 20
to the chief executive. 21
trust accounts 22
Existing
560. A general trust account or special trust account opened under the 23
former Act is taken to have been opened under this Act. 24
agreements entered into by committee 25
Existing
561.(1) This section applies to an agreement entered into, under the 26
repealed Act, between the committee and another entity and in force 27
immediately before the commencement. 28
s 562 344 s 564
Agents and Motor Dealers
(2) The agreement is taken to be an agreement entered into between the 1
chief executive and the other entity under this Act. 2
(3) References in the agreement to the registrar or committee are taken to 3
be references to the chief executive or, if the context permits, to an agents 4
and motor dealers board. 5
auditors 6
Existing
562.(1) This section applies to an auditor appointed by a licensee or 7
applicant for a licence under the repealed Act whose appointment is in force 8
immediately before the commencement. 9
(2) The auditor is taken to be appointed by the principal licensee under 10
this Act on the same conditions as the appointment under the repealed Act. 11
(3) If the auditor was appointed by the Minister under the repealed Act, 12
section 124, 215 the auditor is taken to be approved by the chief executive 13
under section 359216 to audit the principal licensee's trust accounts. 14
receivers appointed by committee 15
Existing
563.(1) A receiver of property appointed by the committee under the 16
repealed Act is taken to be a receiver appointed over the property by the 17
chief executive under this Act. 18
(2) If the receiver appointed by the committee is in possession of the 19
property immediately before the commencement, the receiver is taken to be 20
in possession of the property under this Act. 21
or deputy registrar's acts and decisions 22
Registrar's
564.(1) This section applies to an act done or decision made by the 23
registrar, or a deputy registrar, of auctioneers and agents under the repealed 24
Act that may be done lawfully by the chief executive under this Act. 25
(2) The act or decision is taken to have been done or made by the chief 26
executive under this Act. 27
215 Section 124 (Remote localities)
216 Section 359 (Chief executive to consider application)
s 565 345 s 567
Agents and Motor Dealers
of restriction on licensee's remedy for commission etc. 1
Continuation
565.(1) If, before the commencement, a licensee under the repealed Act 2
was engaged or appointed for a particular transaction-- 3
(a) section 76 of that Act continues to apply to the licensee in relation 4
to the engagement or appointment; and 5
(b) if the licensee wants to sue for, or recover or retain, a fee, charge 6
or commission payable under the engagement or appointment, 7
the licensee must do so under the repealed Act as if it had not 8
been repealed. 9
(2) However, subsection (1) does not apply if the licensee and the person 10
with whom the licensee entered into the engagement or appointment decide 11
otherwise by written agreement after the commencement. 12
action 13
Disciplinary
566.(1) If the committee had started, but not finished, disciplinary action 14
under the repealed Act before the commencement, the action may be 15
finished under that Act as if that Act had not been repealed and an agents 16
and motor dealers board were the committee. 17
(2) However, if the committee had started, but not finished, hearing a 18
disciplinary proceeding under the repealed Act before the commencement, 19
the disciplinary proceeding must be reheard under that Act as if that Act had 20
not been repealed and an agents and motor dealers board were the 21
committee. 22
23
Appeals
567.(1) If-- 24
(a) a person had appealed to a District Court under the repealed Act 25
before the commencement against a decision of the committee; 26
and 27
(b) the appeal had not been decided before the commencement; 28
the District Court may hear, or continue to hear, and decide the appeal under 29
that Act as if it had not been repealed. 30
(2) If-- 31
s 568 346 s 570
Agents and Motor Dealers
(a) a person could have appealed to a District Court under the 1
repealed Act before the commencement against a decision of the 2
committee; and 3
(b) the person had not appealed before the commencement; 4
the person may appeal under that Act as if it had not been repealed. 5
(3) For the purpose of an appeal mentioned in subsection (1) or (2), a 6
decision of the committee is taken to be-- 7
(a) for a decision of a kind that, under this Act, must be made by the 8
chief executive--a decision of the chief executive; or 9
(b) for a decision of a kind that, under this Act, must be made by an 10
agents and motor dealers board--a decision of the board; or 11
(c) for a decision of a kind that, under this Act, may be made by the 12
registrar--a decision of an agents and motor dealers board. 13
proceedings by or against committee 14
Legal
568.(1) A legal proceeding by or against the committee that has not been 15
finished before the commencement may be continued and finished by or 16
against the chief executive. 17
(2) If, because of an event that happened before the commencement, a 18
legal proceeding could have been started by or against the committee, the 19
legal proceeding may be started by or against the chief executive. 20
to repealed Act 21
References
569. In an Act or document, a reference to the repealed Act may, if the 22
context permits, be taken as a reference to this Act. 23
to former fund 24
References
570. In an Act or document, a reference to the former fund may, if the 25
context permits, be taken as a reference to the fidelity guarantee fund. 26
347
Agents and Motor Dealers
CHEDULE 1 1
¡S
ECISIONS UNDER PROVISIONS THAT ARE 2
D
SUBJECT TO APPEAL 3
sections 532 and 534 4
PART 1--DECISIONS OF THE CHIEF EXECUTIVE 5
section 29 (Chief executive must consider suitability of applicants 6
and licensees) 7
section 51 (Chief executive may issue or refuse to issue licence) 8
section 54 (Licences--conditions) 9
section 60 (Chief executive may renew or refuse to renew licence) 10
section 64 (Chief executive may restore or refuse to restore licence) 11
section 69 (Chief executive may appoint or refuse to appoint 12
substitute licensee) 13
section 73 (Amendment of licence conditions) 14
section 76 (Licence may be deactivated) 15
section 82 (Replacement licences) 16
section 359 (Chief executive to consider application) 17
section 363 (Chief executive may withdraw approval as approved 18
auditor) 19
section 379 (Chief executive may freeze licensee's accounts in 20
particular cases) 21
348
Agents and Motor Dealers
PART 2--DECISIONS OF AN AGENTS AND MOTOR 1
DEALERS BOARD 2
section 453 (Deciding claims without a hearing--agents and motor 3
dealers board) 4
section 479 (Orders agents and motor dealers board may make on fee 5
review hearing) 6
section 480 (Orders agents and motor dealers board may make on 7
disciplinary charge hearing) 8
section 481 (Orders agents and motor dealers board may make on 9
claim hearing) 10
11
349
Agents and Motor Dealers
CHEDULE 2 1
¡S
CONSEQUENTIAL AMENDMENTS 2
section 547 3
MALL CLAIMS TRIBUNALS ACT 1973 4
´S
1. Section 4(1), definition "claimant", paragraph (a), `(f)'-- 5
omit, insert-- 6
`(g)'. 7
2. Section 4(1), definition "claimant"-- 8
insert-- 9
`(g) in relation to a claim for repair of a defect in a motor vehicle 10
under the Agents and Motor Dealers Act 1997--the buyer of the 11
vehicle;'. 12
3. Section 4(1), definition "small claim"-- 13
insert-- 14
`(b) a claim for repair of a defect in a motor vehicle under the Agents 15
and Motor Dealers Act 1997, section 293;217 or'. 16
4. Section 14(2)(d), after `tenancy application'-- 17
insert-- 18
`or a claim for repair of a defect in a motor vehicle under the Agents and 19
Motor Dealers Act 1997'. 20
217 Section 293 (Seller's failure to repair)
350
Agents and Motor Dealers
5. Section 16(2), `(f)'-- 1
omit, insert-- 2
`(g)'. 3
6. Section 21(2), after `tenancy application'-- 4
insert-- 5
`or a claim for repair of a defect in a motor vehicle under the Agents and 6
Motor Dealers Act 1997, section 293218'. 7
8
218 Section 293 (Seller's failure to repair)
351
Agents and Motor Dealers
CHEDULE 3 1
¡S
ICTIONARY 2
D
section 13 3
"account", for chapter 9, part 4, see section 378. 4
"agents and motor dealers board" see section 424. 5
"agents and motor dealers licence" means an agents and motor dealers 6
licence issued under this Act. 7
"approved financial institution" means a financial institution that-- 8
(a) has been prescribed under a regulation to be a financial institution 9
to which section 376 applies; and 10
(b) has entered into an agreement under the section. 11
"approved form", for a purpose, means a form approved by the chief 12
executive for the purpose under section 545. 13
"arrangement" includes agreement, promise, scheme, transaction (with or 14
without consideration), understanding and undertaking (whether 15
express or implied). 16
"associate", of a person, means a spouse, de facto spouse, parent, brother, 17
sister, child or step-child of the person, or a child or step-child of the 18
person's spouse or defacto spouse. 19
"auctioneer"-- 20
(a) generally, see section 203; and 21
(b) for chapter 6, part 4, see section 235. 22
"auctioneer's licence" means an agents and motor dealers licence 23
(auctioneer). 24
"audit month", for chapter 9, part 2, division 3, see section 365. 25
"audit period", for chapter 9, part 2, division 3, see section 365. 26
"audit report", for chapter 9, part 2, division 3, see section 365. 27
352
Agents and Motor Dealers
"auditor" see section 356. 1
"beneficial interest" see section 15. 2
"body corporate" means-- 3
(a) a body corporate under the Building Units and Group Titles Act 4
1980; or 5
(b) a body corporate for a leasehold building units plan under the 6
South Bank Corporation Act 1989; or 7
(c) a body corporate for a basic community titles scheme under the 8
Body Corporate and Community Management Act 1997. 9
"building complex" means-- 10
(a) a building on a single building units plan under the Building Units 11
and Group Titles Act 1980; or 12
(b) a building or buildings on a single group title plan under the 13
Building Units and Group Titles Act 1980; or 14
(c) a building or buildings shown on a single leasehold building units 15
plan under the South Bank Corporation Act 1989; or 16
(d) a building or buildings on scheme land in a single community 17
titles scheme or a layered arrangement of community title 18
schemes under the Body Corporate and Community 19
Management Act 1997. 20
"business day"-- 21
(a) for chapter 6, part 4--see section 235. 22
(b) for chapter 7, part 5--see section 281. 23
"business of letting" includes the collecting or receiving of rents by an 24
agent for a principal, whether or not the agent has let the house, land, 25
estate or business concerned. 26
"caravan" means a trailer fitted, equipped, or used principally for camping 27
or as a dwelling or for carrying on any trade or business. 28
"commencement", for chapter 17, see section 549. 29
"commercial agent" see section 309. 30
"commercial agent (employee)" see section 311. 31
353
Agents and Motor Dealers
"commercial agent's licence" means an agents and motor dealers licence 1
(commercial agent). 2
"commercial vehicle" means a motor vehicle-- 3
(a) built mainly for carrying or hauling goods; or 4
(b) designed to carry more than 9 persons; 5
but does not include a utility with a nominal load carrying capacity of 6
1 t or less. 7
"committee", for chapter 17, see section 549. 8
"consignment", for the sale of a motor vehicle, means the delivering of the 9
motor vehicle by a person into the possession of a motor dealer or 10
auctioneer and the appointing of the motor dealer or auctioneer as an 11
agent to sell the vehicle for the vehicle's owner. 12
"contract"-- 13
(a) for chapter 4, part 3, division 5, see section 131; and 14
(b) for chapter 5, part 3, division 5, see section 179; and 15
(c) for chapter 6, part 3, division 6, see section 220. 16
"convict" means find guilty, or accept a plea of guilty. 17
"corresponding law" means a law of another State or New Zealand that 18
provides for the same matter as this Act or a provision of this Act. 19
"court" means a Magistrates Court constituted by a stipendiary magistrate. 20
"decision-maker", for chapter 11, part 3, see section 443. 21
"defalcation", for chapter 9, part 4, see section 378. 22
"defect"-- 23
(a) for chapter 6, part 4, see section 236; and 24
(b) for chapter 7, part 5, see section 282. 25
"del credere agent" means a licensee who-- 26
(a) is authorised under the licensee's licence to sell livestock; and 27
(b) guarantees the payment of the livestock's purchase price to the 28
seller of the livestock. 29
354
Agents and Motor Dealers
"employ" includes engage on a contract for services or commission and 1
use the services of, whether or not for reward. 2
"employed licensee" means a licensee who performs the functions of a 3
licensee as the employee of someone else. 4
"employment register"-- 5
(a) of a restricted letting agent, see section 104; 6
(b) of a real estate agent, see section 148; 7
(c) of a pastoral house, see section 194; 8
(d) of a motor dealer, see section 299; 9
(e) of a commercial agent, see section 329. 10
"exclusive agency" see section 19. 11
"executive officer", for a corporation, means any person, by whatever 12
name called and whether or not the person is a director of the 13
corporation, who is concerned, or takes part, in the management of the 14
corporation. 15
"false or misleading" statement or representation includes the wilful 16
concealment of a material fact. 17
"fee", for chapter 11, part 1, see section 431. 18
"fidelity guarantee fund" see section 373. 19
"financier" means a corporation whose ordinary business (whether or not 20
it carries on any other business) is providing credit and that does not 21
carry on the business of dealing with motor vehicles except only for 22
1 or more of the following purposes-- 23
(a) selling motor vehicles on instalment terms; 24
(b) hiring motor vehicles under hire-purchase agreements; 25
(c) effectuating or enforcing securities over motor vehicles; 26
(d) hiring motor vehicles, if no right to purchase a motor vehicle is 27
included in the hiring of the vehicle; 28
(e) disposing of motor vehicles acquired by it in connection with a 29
purpose mentioned in paragraphs (a) to (d). 30
"former fund", for chapter 17, see section 549. 31
355
Agents and Motor Dealers
"former licensee"-- 1
(a) for chapter 11, part 1, see section 431; and 2
(b) elsewhere, means a person who held a licence under this or the 3
repealed Act. 4
"former salesperson", for chapter 11, part 2, see section 437. 5
"fund" means the fidelity guarantee fund. 6
"GOC" means a government owned corporation under the Government 7
Owned Corporations Act 1993. 8
"holder", of an account, see section 378. 9
"holder", of an agents and motor dealers licence, means the person in 10
whose name the licence is issued. 11
"in charge" see section 16. 12
"information notice", for a decision of the chief executive, is a written 13
notice stating-- 14
(a) the decision; and 15
(b) the reasons for the decision; and 16
(c) that the person to whom the notice is given may appeal against 17
the decision to a Magistrates Court within 28 days. 18
"land" includes-- 19
(a) a lot shown on-- 20
(i) a building units plan registered or to be registered under the 21
Building Units and Group Titles Act 1980; or 22
(ii) a leasehold building units plan registered or to be registered 23
under the South Bank Corporation Act 1989; and 24
(b) land under the South Bank Corporation Act 1989.219 25
219 The South Bank Corporation Act 1989, section 4 defines land to include--
(a) any estate in, on, over or under land; and
(b) the airspace above the surface of land and any estate in the airspace; and
(c) the subsoil of land and any estate in the subsoil; and
(d) a building; and
(e) a stratum lot.
356
Agents and Motor Dealers
"letting" includes every form of leasing or letting of houses, land, estates, 1
or businesses. 2
"licence" means an agents and motor dealers licence. 3
"licensee"-- 4
(a) generally, means the holder of an agents and motor dealers 5
licence that is in force; and 6
(b) for chapter 9, part 4, see section 378; and 7
(c) for chapter 11, part 2, see section 437; and 8
(d) for chapter 11, part 3, see section 443. 9
"livestock" means horses, mares, fillies, foals, geldings, colts, bulls, 10
bullocks, cows, heifers, steers, calves, ewes, wethers, rams, lambs and 11
swine. 12
"minor claim", for chapter 11, part 3, see section 443. 13
"misleading" includes deceptive. 14
"money", for chapter 9, part 4, see section 378. 15
"motor dealer"-- 16
(a) generally, see section 259; and 17
(b) for chapter 7, part 5, see section 281. 18
"motor dealer's licence" means an agents and motor dealers licence 19
(motor dealer). 20
"motor salesperson" see section 261. 21
"motor vehicle" see section 17. 22
"obstruct" includes hinder, delay and attempt to obstruct. 23
"obtain"-- 24
(a) for chapter 4, part 3, division 4, see section 126; and 25
(b) for chapter 5, part 3, division 4, see section 174; and 26
(c) for chapter 6, part 3, division 5, see section 215; and 27
(d) for chapter 7, part 3, division 4, see section 274. 28
"open listing" see section 18. 29
357
Agents and Motor Dealers
"option to purchase" includes a transaction granting or purporting to grant 1
a right not immediately exercisable to purchase or to be given an 2
option to purchase. 3
"pastoral house" see section 154. 4
"pastoral house auctioneer" see section 157. 5
"pastoral house auctioneer's licence" means an agents and motor dealers 6
licence (pastoral house auctioneer). 7
"pastoral house director" see section 155. 8
"pastoral house director's licence" means an agents and motor dealers 9
licence (pastoral house director). 10
"pastoral house licence" means an agents and motor dealers licence 11
(pastoral house). 12
"pastoral house manager" see section 156. 13
"pastoral house manager's licence" means an agents and motor dealers 14
licence (pastoral house manager). 15
"pastoral house officer", of a pastoral house, means-- 16
(a) an executive officer of the pastoral house; or 17
(b) a pastoral house manager of the pastoral house; or 18
(c) a pastoral house auctioneer of the pastoral house; or 19
(d) a pastoral house salesperson of the pastoral house. 20
"pastoral house salesperson" see section 159. 21
"principal licensee" means-- 22
(a) if the licensee is an individual--a licensee who carries on 23
business on the licensee's own behalf; or 24
(b) if the licensee is a corporation--the corporation. 25
"property", for chapter 9, part 4, see section 378. 26
"providing credit" means-- 27
(a) the making of loans; or 28
(b) the hiring under hire-purchase agreements of motor vehicles 29
bought or taken in exchange from or with-- 30
358
Agents and Motor Dealers
(i) licensed motor dealers; or 1
(ii) financiers; or 2
(iii) persons not being licensed dealers or financiers in 3
circumstances which do not constitute the person so buying 4
or taking motor vehicles in exchange a dealer; or 5
(c) the giving of guarantees, indemnities or bonds; or 6
(d) the endorsing or accepting of bills of exchange; or 7
(e) the hiring of motor vehicles where the right to purchase the motor 8
vehicle is not included in that hiring or the sale on instalment 9
terms. 10
"real estate agent" see section 109. 11
"real estate agent's licence" means an agents and motor dealers licence 12
(real estate agent). 13
"real estate salesperson" see section 111. 14
"receivership property", for chapter 9, part 4, see section 378. 15
"register of ineligible persons" see section 540. 16
"registered office"-- 17
(a) of a restricted letting agent, see section 101; 18
(b) of a real estate agent, see section 145; 19
(c) of a pastoral house, pastoral house director, pastoral house 20
manager or pastoral house auctioneer, see section 191; 21
(d) of an auctioneer, see section 249; 22
(e) of a trainee auctioneer, see section 252; 23
(f) of a motor dealer, see section 295; 24
(g) of a commercial agent, see section 326. 25
"registrar" means the registrar of agents and motor dealers boards 26
appointed under section 429. 27
"relevant person", for chapter 11, part 3, see section 443. 28
"repealed Act" means the Auctioneers and Agents Act 1971. 29
359
Agents and Motor Dealers
"representation" includes a statement, promise, publication and other 1
representation made in any way. 2
"restricted letting agent" see section 85. 3
"restricted letting agent (employee)" see section 87. 4
"restricted letting agent's licence" means an agents and motor dealers 5
licence (restricted letting agent). 6
"reward" includes fee, gain and other remuneration. 7
"rural land" means land used for grazing stock or cultivating crops on a 8
commercial basis. 9
"sale by auction" means the sale of property by outcry, knocking down of 10
hammer, or in another way under which the highest or any bidder is 11
the buyer, or under which there is a competition for the purchase of the 12
property in any way commonly known and understood to be by way 13
of auction. 14
"salesperson", for chapter 11, part 2, see section 437. 15
"security interest certificate" means a security interest certificate under the 16
Motor Vehicles Securities Act 1986. 17
"sell" includes agree to sell, advertise or display for sale, attempt to sell, 18
have for sale, negotiate for a sale, and in any way be concerned in 19
selling. 20
"serious offence" means any of the following offences punishable by 3 or 21
more years imprisonment-- 22
(a) an offence involving fraud or dishonesty; 23
(b) an offence involving the trafficking of drugs; 24
(c) an offence involving the use or threatened use of violence; 25
(d) an offence of a sexual nature; 26
(e) extortion; 27
(f) arson; 28
(g) unlawful stalking; 29
(h) another offence prescribed under a regulation. 30
"sole agency" see section 19. 31
360
Agents and Motor Dealers
"state of mind", of a person, includes-- 1
(a) the person's knowledge, intention, opinion, belief or purpose; and 2
(b) the person's reasons for the intention, opinion, belief or purpose. 3
"statutory warranty"-- 4
(a) for chapter 6, part 4, see section 235; and 5
(b) for chapter 7, part 5, see section 281. 6
"suitable person"-- 7
(a) for an individual--see section 27; and 8
(b) for a corporation--see section 28. 9
"trainee auctioneer" see section 204. 10
"trainee auctioneer's licence" means an agents and motor dealers licence 11
(trainee auctioneer). 12
"transactions register" see section 300. 13
"trust account", for chapter 9, part 2, division 3, see section 365. 14
"trust money", for chapter 9, part 4, see section 378. 15
"used motor vehicle" means a motor vehicle that has, at any time, been 16
licensed or registered, whether under the law of this State or of any 17
other State or a foreign country. 18
"vacant land"-- 19
(a) for chapter 4, part 3, division 6, see section 136; and 20
(b) for chapter 5, part 3, division 6, see section 184; and 21
(c) for chapter 6, part 3, division 7, see section 225. 22
"warranty period"-- 23
(a) for chapter 6, part 4, see section 235; and 24
(b) for chapter 7, part 5, see section 281. 25
26
© State of Queensland 1997
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