Victorian Current Acts Victorian Current Acts(1) An estate agent must not obtain a beneficial interest in any real estate or business that the estate agent has been commissioned by any principal to sell.
Penalty: 240 penalty units or imprisonment for 2 years, or both.
(2) An agent's representative employed by an estate agent must not obtain a beneficial interest in any real estate or business that the estate agent has been commissioned by any principal to sell.
Penalty: 240 penalty units or imprisonment for 2 years, or both.
(3) Without limiting subsections (1) or (2), a person obtains a beneficial interest if any of the following circumstances arise—
(a) the person or an associate of the person—
(i) purchases the real estate or business; or
(ii) holds an option to purchase the real estate or business;
(b) a proprietary corporation of which the person or an associate of the person is a member—
(i) purchases the real estate or business; or
(ii) holds an option to purchase the real estate or business;
(c) a corporation over which the person (either individually or jointly with associates) or an associate of the person can exercise control—
(i) purchases the real estate or business; or
(ii) holds an option to purchase the real estate or business;
(d) a corporation of which the person or an associate of the person is an executive officer—
(i) purchases the real estate or business; or
(ii) holds an option to purchase the real estate or business;
(e) if the person is a corporation, an executive officer of that corporation or an associate of the executive officer—
(i) purchases the real estate or business; or
(ii) holds an option to purchase the real estate or business;
(f) the trustee of a discretionary trust of which the person or an associate of the person is a beneficiary purchases, or obtains a beneficial interest in, the real estate or business;
(g) a member of a firm or partnership of which the person or an associate of the person is also a member purchases the real estate or business;
(h) in the case of real estate—
(i) the person or an associate of the person has, directly or indirectly, a right to participate in the income or profits of a business carried on for profit or gain; and
(ii) another person carrying on that business obtains a beneficial interest in the real estate;
(i) in the case of a business ( Business 1 )—
(i) the person or an associate of the person has, directly or indirectly, a right to participate in the income or profits of another business ( Business 2 ) carried on for profit or gain; and
(ii) another person carrying on Business 2 obtains a beneficial interest in Business 1.
(4) A person does not contravene subsection (1) or (2) if—
(a) the person—
(i) before a contract for the sale of the real estate or business is entered into, obtains the principal's written acknowledgment in the form approved by the Director that the principal—
(A) is aware that the person is interested in obtaining a beneficial interest in the real estate or business; and
(B) consents to the person obtaining the interest; and
S. 55(4)(a)(ii) substituted by No. 50/2014 s. 32.
(ii) acts honestly and reasonably in relation to the transaction; and
(b) no commission or other reward is payable in relation to the transaction; and
(c) the principal is in substantially as good a position as the principal would be if the real estate or business were sold at fair market value.
(5) In this section—
"associate" means—
(a) an employee of the estate agent; or
(b) a spouse, domestic partner, parent, brother, sister or child of the estate agent or agent's representative; or
(c) a child of the spouse or domestic partner of the estate agent or agent's representative;
control has the meaning given by section 50AA of the Corporations Act;
"executive officer" means any person, howsoever described and whether or not the person is a director of the corporation, who is concerned, or takes part, in the management of the corporation;
"obtain" includes being in any way concerned in obtaining.
S. 55A inserted by No. 36/2011 s. 4.