Western Australian Current Acts

SETTLEMENT AGENTS ACT 1981 - SECT 3

3 .         Terms used

        (1)         In this Act unless the context otherwise requires —

        appointed day ¹ means the day fixed by the Minister pursuant to section 26(2);

        approved means approved by the Commissioner;

        auditor means a person appointed under this Act to audit the trust accounts of a settlement agent;

        bank means —

            (a)         an ADI (authorised deposit-taking institution) as defined in section 5 of the Banking Act 1959 of the Commonwealth; or

            (b)         a bank constituted by a law of a State, a Territory or the Commonwealth;

        business means —

            (a)         subject to paragraph (b), the business of a settlement agent; and

            (b)         in the definition of business transaction and in section 45(a), any commercial undertaking or enterprise in respect of any profession, trade, employment, vocation or calling within the State;

        business settlement agent means any person who arranges or effects a settlement of a business transaction for reward or who, whether for reward or otherwise, carries on business arranging or effecting settlements of business transactions and whether or not that business is carried on in conjunction with or as part of or associated with any other profession, trade, occupation or employment, but does not include the exceptions specified in section 4(1);

        business transaction —

            (a)         means the disposal by sale or exchange, and the acquisition by purchase or exchange of a business and any share or interest in a business or the goodwill thereof within the State; and

            (b)         includes any disposal by sale or exchange, and any acquisition by purchase or exchange of goods, chattels, or other property within the State relating to a business transaction of the kind specified in paragraph (a),

        but does not include —

            (c)         the sale, exchange, or other disposal or a purchase, exchange, or other acquisition of a share in the capital of a body corporate or an option in respect thereof;

        Commissioner has the meaning given in the Fair Trading Act 2010 section 6;

        defalcation by a licensee includes criminal or fraudulent conduct —

            (a)         of a licensee; or

            (b)         of any one or more of the servants or agents of the licensee; or

            (c)         of a person who is a partner in the business of the licensee; or

            (d)         where the licensee is a firm and a body corporate is a partner in the firm or where the licensee is a body corporate, of any one or more of the directors, officers, servants, or agents of the body corporate,

        in the course of the business of the licensee and from which arises pecuniary loss or loss of property to any other person;

        department means the department of the Public Service principally assisting the Minister in the administration of this Act;

        Fidelity Guarantee Account or Account means the account established under section 87;

        fidelity guarantee fee means the fee prescribed pursuant to section 92(1);

        General Purpose Account means the Education and General Purpose Account established under section 102A;

        Interest Account means the Settlement Agents Interest Account established under section 103(1);

        licence means the licence of a real estate settlement agent or of a business settlement agent under this Act;

        licensed means licensed as a settlement agent under this Act;

        licensee means a person licensed under this Act;

        real estate or land means land within the State and includes buildings or parts of buildings within the State;

        real estate settlement agent means any person who arranges or effects the settlement of a real estate transaction for reward or who, whether for reward or otherwise, carries on business arranging or effecting settlements of real estate transactions and whether or not that business is carried on in conjunction with or as part of or associated with any other profession, trade, occupation or employment, but does not include the exceptions specified in section 4(1);

        real estate transaction —

            (a)         means the disposal by sale or exchange, and the acquisition by purchase or exchange of real estate; and

            (b)         includes any disposal by sale or exchange, or any acquisition by purchase or exchange of goods, chattels or other property relating to a real estate transaction of a kind specified in paragraph (a);

        renewal means renewal of a triennial certificate;

        reward means any valuable consideration in money or moneys worth paid or received as commission or remuneration —

            (a)         whether payable in cash or kind; and

            (b)         whether paid or received directly or indirectly; and

            (c)         whether paid or received separately or as a component of a composite price or fee paid or received in respect of any transaction or service;

        settlement means the completion of a real estate transaction or a business transaction (as the case may be) by payment of the balance of purchase price in respect to such real estate transaction or business transaction;

        settlement agent means a person who is a real estate settlement agent or a business settlement agent or both a real estate settlement agent and a business settlement agent but does not include the exceptions specified in section 4(1);

        settlement agents’ code of conduct or code of conduct means the code prescribed under section 82;

        supervisor means a person appointed by the Commissioner as supervisor of the business of a settlement agent;

        transaction means a real estate transaction or a business transaction or both a real estate transaction and a business transaction;

        Treasurer means the Treasurer of the State;

        Treasury means the State Treasury;

        triennial certificate means a certificate granted under this Act to a licensee to carry on business as a settlement agent;

        trustee company means a body corporate authorised by the law of any State or Territory of the Commonwealth to apply for and obtain, in its own name, a grant of probate or of letters of administration of the estate of a deceased person.

        (2)         Where a reward is paid or received by a person by reason of, or in contemplation of, some other person arranging or effecting a settlement that reward shall, for the purposes of this Act, be deemed to be paid to or received by the person arranging or effecting the settlement.

        (3)         Where 2 or more persons do acts which together constitute a settlement then each of those persons shall be deemed to have effected a settlement notwithstanding that the acts performed by any one of those persons do not constitute a settlement.

        (4)         The fact that a payment, or a component of a price or fee, was not expressed, or was not acknowledged, to have been paid or received as commission or remuneration for any particular service, or was neither so expressed nor so acknowledged, shall not prevent that payment, or component of a price or fee, from being construed for the purposes of this Act as having been paid or received in respect of that service.

        [Section 3 amended: No. 98 of 1985 s. 3; No. 59 of 1995 s. 58; No. 26 of 1999 s. 102(2); No. 65 of 2003 s. 66(2); No. 55 of 2004 s. 1081; No. 77 of 2006 Sch. 1 cl. 156(1); No. 21 of 2008 s. 704(2); No. 8 of 2009 s. 117; No. 46 of 2009 s. 15(2); No. 58 of 2010 s. 136 and 176; No. 9 of 2022 s. 424.]