10Disqualified persons

#### 10 Disqualified persons 10 Disqualified persons > > (1) A person is a disqualified person for the purposes of this Act if the person— > > > > > (a) has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Secretary has determined under subsection (3) that the offence should be ignored, or > > > > > (b)–(d) (Repealed) > > > > > (e) is a mentally incapacitated person, or > > > > > (f) is disqualified from holding a licence or other authority under a corresponding law or is the holder of such a licence or authority that is suspended, or > > > > > (g) is the holder of a licence, permit or other authority that is suspended under legislation administered by the Minister or is disqualified from holding a licence, permit or other authority under legislation administered by the Minister, or > > > > > (h) is in partnership with a person who is a disqualified person, or > > > > > (i) is for the time being declared to be a disqualified person under Part 9 (Complaints and disciplinary action), or > > > > > (j) is a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed, or > > > > > (k) has failed to pay a contribution or levy payable by the person under section 89 and the failure continues, or > > > > > (l) has failed to pay an amount due as a debt to the Crown by way of recovery of an amount paid out of the Compensation Fund and the failure continues, or > > > > > (m) has failed to pay any monetary penalty payable by the person under Part 9 (Complaints and disciplinary action) or has failed to comply with any direction given by the Secretary under that Part, and the failure continues, or > > > > > (n) has failed to comply with the requirements of section 75 to have an audit of the records and documents relating to any trust money carried out within the required time, unless the Secretary determines in the circumstances that failure should not disqualify the person, or > > > > > (o) has been removed (otherwise than at his or her own request) from the roll of lawyers kept by the Supreme Court or from a corresponding roll of lawyers kept by a superior court of another State or Territory, or > > > > > (p) is disqualified from being employed in a law practice by virtue of an order made under Division 1 of Part 3.9 of the [Legal Profession Uniform Law (NSW)](/view/html/inforce/current/act-2014-16a), or > > > > > (p1) is an Australian legal practitioner, incorporated legal practice or solicitor corporation, or > > > > > (q) is a disqualified person under the [Property and Stock Agents Act 2002](/view/html/inforce/current/act-2002-066), or > > > > > (q1) is the holder of a licence or certificate of registration under the [Property and Stock Agents Act 2002](/view/html/inforce/current/act-2002-066), or > > > > > (r) is in breach of any provision of this Act or the regulations that is prescribed by the regulations as a disqualifying breach. > > > (2) A person is also a disqualified person for the purposes of this Act (except for the purposes of section 29) if the person— > > > > > (a) is an undischarged bankrupt, or > > > > > (b) at any time in the last 3 years was an undischarged bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit, or > > > > > (c) is, or was at any time in the last 3 years, concerned in the management of, or a director of, a Chapter 5 body corporate except in a case of the voluntary winding up of the body corporate, or > > > > > (d) is a person— > > > > > > > (i) who was, at any time in the last 3 years, concerned in the management of, or a director of, a body corporate that, within 12 months of the person ceasing to be such a person or director, became a Chapter 5 body corporate except in the case of a voluntary winding up of the body corporate, and > > > > > > > (ii) who failed (while concerned in the management of, or a director of, that body corporate) to take all reasonable steps to avoid the body corporate becoming a Chapter 5 body corporate. > > > (3) The Secretary may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence. > > > (3A) The Secretary may determine that the factors listed in subsection (1) (g) or (j) should be ignored for the purposes of this section if, on the basis of information provided to the Secretary, the Secretary considers it appropriate to make that determination. > > > (3B) The Secretary may exempt a person from the operation of subsection (2) (a), (b) or (c) by— > > > > > (a) certifying, in the case of exemption from subsection (2) (a), that the Secretary is satisfied that the person took all reasonable steps to avoid the bankruptcy concerned, or > > > > > (b) certifying, in the case of exemption from subsection (2) (b), that the Secretary is satisfied that the person took all reasonable steps to avoid the bankruptcy or other financial difficulties concerned, or > > > > > (c) certifying, in the case of exemption from subsection (2) (c), that the Secretary is satisfied that the person took all reasonable steps (while concerned in the management of, or a director of, the body corporate) to avoid the body corporate becoming a Chapter 5 body corporate. > > > (3C) Subsection (2) (d) does not operate to make a person a disqualified person unless the Secretary has served a notice on the person giving the person the opportunity to make oral or written submissions to the Secretary within a period (being not less than 14 days) specified in the notice with respect to the grounds on which the person believes he or she took all reasonable steps to avoid the body corporate becoming a Chapter 5 body corporate and the Secretary is satisfied that the person failed to take all such steps. > > > (3D) In determining for the purposes of subsection (3B) or (3C) what reasonable steps could have been taken by a person to avoid a particular outcome, the Secretary is to have regard to the steps that could have been taken by the person from the time that the financial difficulties that gave rise to the outcome first arose. > > > (4) In this section— > > > > Chapter 5 body corporate has the same meaning as in the Corporations Act. > > > > corresponding law means a law of another Australian jurisdiction that is declared by the Minister from time to time by order published on the NSW legislation website to be a law that corresponds to this Act. > > **s 10:** Am 2005 No 46, Sch 11.3 \[5\] \[6\]; 2006 No 33, Sch 1 \[4\]–\[11\]; 2007 No 27, Sch 1.10 \[1\]–\[3\]; 2010 No 119, Sch 3.2; 2015 No 7, Sch 2.6 \[2\]; 2018 No 5, Sch 2.5\[1\]; 2018 No 65, Schs 3.1, 5.1 \[1\]; 2022 No 59, Sch 2.9\[1\]–\[3\].