Victorian Numbered Acts Victorian Numbered ActsAfter section 83 of the Principal Act insert —
In this Division—
"expenses", in relation to a manager, means—
(a) the remuneration payable to the manager; and
(b) the expenses incurred in the course of management under this Division; and
(c) any reimbursement of the manager under this Division.
(1) The Authority may appoint a manager for a private building surveyor's business in any of the following circumstances if the Authority is of the opinion that it is necessary to make the appointment in order to protect the interests of other persons—
(a) the private building surveyor has requested the appointment of a manager;
(b) the private building surveyor's registration under this Act has been suspended or cancelled;
(c) the private building surveyor has died;
(d) the private building surveyor is in prison;
(e) the private building surveyor has become a represented person within the meaning of the Guardianship and Administration Act 1986 ;
(f) the private building surveyor has become insolvent under administration;
(g) the private building surveyor has ceased to carry out the functions of a private building surveyor.
(2) A manager may only be appointed in relation to, and the manager's powers and functions under this Division are limited to, the private building surveyor's functions under this Act and any functions that are reasonably necessary to support the carrying out of those functions.
(3) A manager is eligible for reappointment.
A person must not be appointed as a manager of a private building surveyor's business unless the person is—
(a) registered as a building surveyor under Part 11 and that registration (including any conditions of registration) authorises the person to carry out all work as a building surveyor; or
(b) a member of the staff of the Authority who has the qualifications and experience required for registration as a building surveyor under Part 11 that would authorise the person to carry out all work as a building surveyor.
The instrument of appointment of a manager must specify—
(a) the name of the manager; and
(b) any remuneration payable to the manager; and
(c) any other terms and conditions of the appointment; and
(d) any reporting requirements to be observed by the manager.
(1) An appointment of a manager is subject to—
(a) any conditions imposed by the Authority; and
(b) any conditions imposed by or under the regulations.
(2) The conditions may limit the functions of the private building surveyor that the manager may carry out.
(3) The Authority may impose conditions—
(a) when the appointment is made; or
(b) during the term of the appointment.
(4) The Authority may revoke or vary conditions imposed under subsection (1)(a).
(5) The Authority must give written notice to the manager of any condition imposed under subsection (1)(a) or varied or revoked under subsection (4).
(1) The Authority must serve a notice of the appointment of a manager for a private building surveyor's business, without delay, on—
(a) the private building surveyor; and
(b) each council in whose municipal district the private building surveyor was carrying out work as a private building surveyor at the time of the appointment; and
(c) any person whom the Authority reasonably believes should be served with the notice.
(2) The notice must—
(a) set out the information specified in the instrument of appointment; and
(b) state that the private building surveyor may apply to VCAT under section 83R for review of the decision to appoint the manager; and
(c) contain or be accompanied by any other information prescribed by the regulations.
After service on a private building surveyor of a notice of the appointment of a manager for the private building surveyor's business and until the appointment is terminated, the private building surveyor and any partner, officer, employee or agent of the private building surveyor must not participate in that business except under the direct supervision of the manager.
Penalty: 60 penalty units.
(1) The manager of a private building surveyor's business may, subject to the terms and conditions of the manager's appointment—
(a) carry out work on behalf of the existing clients of the business; and
(b) accept engagement by, and carry out work on behalf of, new clients; and
(c) complete any existing work of the business; and
(d) incur any expenses that are reasonably related to the conduct of the business; and
(e) do anything that is ancillary to the exercise of the powers referred to in paragraphs (a) to (d) as if the manager were the private building surveyor.
(2) The manager of a private building surveyor's business may not exercise any of the powers conferred by this section in relation to the affairs of a client of the business unless the client's consent has been obtained to the exercise by the manager of those powers.
(1) For the purpose of exercising the manager's powers under section 83H, the manager may exercise any or all of the following powers—
(a) to enter and remain in or on any building or land used by the private building surveyor's business for or in connection with the conduct of that business, other than any building or land of a client for whom the private building surveyor is acting as a building surveyor;
(b) to require the private building surveyor or any partner, officer, employee or agent of the private building surveyor or any other person who has or has had control of documents relating to clients of the private building surveyor to give the manager—
(i) access to the documents the manager reasonably requires; and
(ii) information relating to client matters the manager reasonably requires;
(c) to operate equipment or facilities on the land or in the building, or to require any person on or in the land or building to operate equipment or facilities on the premises, for a purpose relevant to the management of the private building surveyor's business;
(d) to take possession of any relevant document or thing;
(e) to secure any relevant document or thing found in or on the building or land against interference, if the document or thing cannot be conveniently removed;
(f) to take possession of any computer equipment or computer program reasonably required for a purpose relevant to the management of the private building surveyor's business.
(2) A manager may enter and remain in or on a building or land under subsection (1)(a) only—
(a) during normal business hours; or
(b) during other hours with the consent of the occupier of the building or land.
(3) A manager must not enter a building or land under subsection (1)(a) unless, before the entry, the manager has produced for inspection by the occupier—
(a) the manager's notice of appointment; and
(b) a form of identification that includes the manager's photograph and signature.
(4) If a manager takes possession of—
(a) a document, disk or tape or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied—
under this section the manager, on request by the occupier, the private building surveyor or a person from whom it was taken, must give a copy of the thing or information to that person as soon as practicable after taking possession of it.
(5) If a manager takes possession of a document or other thing under this section and has not provided a copy of it under subsection (4), the manager must provide a receipt for the document or thing as soon as practicable after taking possession of it.
(6) If a manager takes possession of a document or other thing under this section, the manager may keep it until it is no longer required for the carrying out of the manager's functions.
(7) The manager must take all reasonable steps to return the document or other thing to the person entitled to it as soon as it is no longer required for the carrying out of the manager's functions.
(8) Nothing in this section limits any other power the manager has as a private building surveyor under Division 2 of Part 13 or the building regulations.
(1) An act done by the manager of a private building surveyor's business is, for the purpose of any proceedings or transaction that relies on that act, taken to have been done by the private building surveyor.
(2) Nothing in this section subjects a private building surveyor or any partner, officer, employee or agent of a private building surveyor to any personal liability in relation to any act done by the manager of the private building surveyor's business.
A manager, or a person acting at the direction of the manager, is not liable for anything done or omitted to be done in good faith—
(a) in carrying out a function of the manager under this Division; or
(b) in the reasonable belief that the act or omission was in the carrying out of a function of the manager under this Division.
(1) The Authority must pay to the manager out of the Building account so much of the expenses of the management of the private building surveyor's business as have not otherwise been paid to the manager out of the receipts of the business.
(2) The Authority may recover an amount paid under this section in a court of competent jurisdiction as a debt owed by the private building surveyor.
(3) Any amount recovered under this section must be paid into the Building account.
The regulations may make provision for or with respect to—
(a) the accounts that are to be kept with respect to the income accrued, and the expenses incurred, by the manager of a private building surveyor's business in connection with the conduct of that business; and
(b) the purposes for which the money in any of those accounts may be expended.
The manager of a private building surveyor's business must maintain the records and accounts of the business—
(a) separately from the records and accounts of the business before the manager was appointed; and
(b) separately from the records and accounts of any other private building surveyor's business for which the manager is appointed as manager; and
(c) separately from the records and accounts of the manager's own business; and
(d) in the manner prescribed by the regulations.
(1) A manager must provide written reports in accordance with any reporting requirements to be observed by the manager as specified in the instrument of appointment.
(2) If the instrument of appointment does not specify any reporting requirements, a manager must provide—
(a) written reports as required from time to time by the Authority; and
(b) a written report to the Authority at the termination of the appointment containing the information required by the Authority.
(3) On the conclusion of the management of a private building surveyor's business, the manager must when giving the Authority the final report, lodge with the Authority all of the manager's records that relate to the management.
(1) It is the duty of the manager for a private building surveyor's business to co-operate with the legal personal representative of a deceased private building surveyor for the orderly winding up of the estate.
(2) The manager is not, in the exercise or performance of powers and duties as manager, a legal personal representative of the deceased private building surveyor, but nothing in this subsection prevents the manager from exercising or performing powers or duties as a legal personal representative if otherwise appointed as representative.
(3) Subject to subsections (1) and (2) and to the terms of the manager's appointment, if the manager was appointed before the death of the private building surveyor, the manager's appointment, powers and duties are not affected by the death.
(1) The appointment of a manager for a private building surveyor's business terminates in any of the following circumstances—
(a) the term of the appointment comes to an end;
(b) the appointment is set aside by VCAT under this Division;
(c) the manager has completed the work of the private building surveyor for which the manager was appointed;
(d) a determination of the Authority that the appointment be terminated has taken effect.
(2) The Authority may determine in writing that the appointment be terminated immediately or with effect from a specified date.
(3) If the appointment terminates, the former manager must, as soon as practicable after the termination, transfer and deliver all documents of the private building surveyor to—
(a) another manager appointed for the private building surveyor's business; or
(b) the private building surveyor, if another manager is not appointed for the private building surveyor's business.
(4) The former manager need not transfer documents to the private building surveyor in accordance with subsection (3) unless the manager's expenses have been paid to the Authority.
(5) The Authority must serve a written notice of the termination on all persons originally served with notice of the appointment.
(1) The following persons may apply to VCAT for review of the decision of the Authority to appoint a manager for a private building surveyor's business or the conditions of that appointment—
(a) the private building surveyor;
(b) an employee of the private building surveyor;
(c) any other person whose interests may be adversely affected by the appointment.
(2) The application is to be made within 7 days after notice of the appointment of the manager is served under section 83F.
(3) On an application under this section, VCAT may—
(a) affirm the appointment; or
(b) set aside the appointment; or
(c) impose or vary any conditions of the appointment; or
(d) make any other orders it considers appropriate.
(4) Unless VCAT otherwise directs, an application under this section for review of a decision to appoint a manager of a private building surveyor's business does not stay the operation of the decision.
VCAT may, on application by—
(a) a manager of a private building surveyor's business; or
(b) the private building surveyor; or
(c) any other person affected by the management by the manager of the private building surveyor's business—
give directions in relation to any matter affecting that management or the manager's powers, duties or functions under this Division.
(1) A manager must not disclose information obtained as a result of the manager's appointment except—
(a) so far as is necessary for exercising powers or functions of the manager; or
(b) as provided in subsection (2).
Penalty: 60 penalty units.
(2) A manager may disclose information to any of the following—
(a) any court, tribunal or other person acting judicially;
(b) the Authority or an employee of the Authority;
(c) a council or a municipal building surveyor;
(d) the private building surveyor or any partner, employee or agent of the private building surveyor;
(e) a client or former client of the private building surveyor's business if the information relates to the client or former client;
(f) another manager appointed in relation to the private building surveyor's business or a person employed by that other manager.
A person must not without reasonable excuse hinder, obstruct or delay a manager in the carrying out of the manager's functions under this Division.
Penalty: 120 penalty units.
(1) This section applies if an owner of a building or land has appointed a private building surveyor and paid money to that private building surveyor for the private building surveyor to carry out certain functions under section 76 relating to that building or land.
(2) The owner may recover all or part of the money paid to the private building surveyor in a court of competent jurisdiction as a debt due to the owner if—
(a) the private building surveyor can no longer carry out the functions referred to in subsection (1) for any of the reasons listed in paragraphs (a) to (g) of section 83B(1); and
(b) before becoming unable to carry out those functions, the private building surveyor had not completed those functions; and
(c) the uncompleted functions are not to be completed by a manager appointed under section 83B because the owner has not consented to the completion of the work by a manager.
Note
Under section 83H(2), a client of a private building surveyor must consent to a manager completing the client's work.".