37Certain money to be trust money

##### 37 Certain money to be trust money (1) Moneys paid to a person (not being a registered insurance broker) as agent of an insurer, being moneys paid in relation to a contract of insurance or proposed contract of insurance, are subject to a trust in favour of the insurer and are not capable of being attached or otherwise taken in execution or of being made subject to a set‑off, charge or charging order or to any process of a like nature. (1A) If money referred to in subsection (1) is paid to a person (the sub‑agent) who is the agent of an insurance agent, the money is taken to have been paid to the insurance agent at the time when it is received by the sub‑agent, whether or not the sub‑agent acted within the scope of authority granted by the agent. (2) Where the contract of insurance was arranged by the person and the moneys constitute the first payment made in relation to the contract, then, unless the moneys are paid by cheque payable to the insurer, the person shall, as soon as is reasonably practicable: (a) give a receipt for the moneys to the person by whom they were paid; and (b) state on the receipt the name and a place of business of the insurer. (2A) Subject to subsections (2C) and (2D), if money referred to in subsection (1) is paid to the person as a premium under a contract of insurance or a proposed contract of insurance, the person must pay the money to the insurer not more than 37 days after the day on which the money is received. (2B) Subject to subsections (2C) and (2D), if money referred to in subsection (1) is paid as an instalment of a premium under a contract of insurance or a proposed contract of insurance, the person must pay the money to the insurer not more than 37 days after the day on which the money is received. (2C) If, at the time when money referred to in subsection (1) is received on behalf of an insurer in respect of insurance business, the person is, under section 37A, exempt from the requirements of subsections (2A) and (2B) so far as that insurer and that insurance business are concerned, that money need not be paid to the insurer within the time limits specified in those subsections but must be paid to the insurer as soon as is reasonably practicable. (2D) If the person ceases to be exempt from the requirement of subsections (2A) and (2B) so far as a particular class of insurer and particular insurance business are concerned: (a) any money received by the person on behalf of that insurer in respect of that insurance business before the day on which the person ceased to be so exempt must be paid to the insurer within 30 days after that day; and (b) any money applied in settlement of a claim against the insurer before the day on which the person ceased to be so exempt is to be treated, for the purposes of paragraph (a), to have been paid to the insurer when it was so applied. (3) If: (a) money referred to in subsection (2A) or (2B) is paid to the person; and (b) the money is paid by cheque (other than a cheque payable to the insurer); the money is taken to have been paid to the person when the cheque was received by the person. (3A) Moneys referred to in subsection (2A), (2B), (2C) or (2D) may be reduced by: (a) where the contract concerned is a contract of general insurance—any amounts due to the person pursuant to an agreement with the insurer; or (b) in any other case—any amounts due to the person pursuant to an agreement with the insurer, other than an agreement in force under section 10. (3B) Where, before the person has been paid an amount as described in subsection (1), the person has paid to the insurer an amount on account of the first‑mentioned amount, the moneys referred to in subsection (2A), (2B), (2C) or (2D) shall be reduced by the amount so paid to the insurer. (4) An act done in contravention of subsection (2), (2A), (2B), (2C) or (2D) constitutes an offence against that subsection notwithstanding that it was done with the consent of the insurer. Penalty: Imprisonment for 2 years. > Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of an offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by a court on an individual convicted of the same offence.