Div 3Indemnity fund

Division 3—Indemnity fund 29—Indemnity fund (1) The Commissioner must maintain an indemnity fund. (2) The Commissioner may invest money constituting, or forming part of, the indemnity fund in accordance with the regulations. (3) The indemnity fund comprises— (a) the money standing to the credit of the fund kept under Part 8 of the repealed Land Agents, Brokers and Valuers Act 1973 immediately before the commencement of this Act; and (b) interest paid by ADIs to the Commissioner on trust accounts; and (c) money recovered by the Commissioner in relation to a fiduciary default; and (d) fines recovered as a result of disciplinary proceedings under Part 4; and (e) interest accruing from investment of the fund; and (f) money required to be paid into the fund under this or any other Act. (4) Money standing to the credit of the indemnity fund may be applied by the Commissioner for any of the following purposes: (a) the costs of investigating compliance with this Act, compliance with the Land and Business (Sale and Conveyancing) Act 1994 by agents or sales representatives or possible misconduct of agents, sales representatives or property managers; (ab) the costs of conciliating disputes relating to the activities of agents, sales representatives or property managers; (ac) the costs of disciplinary proceedings under Part 4; (b) the costs of prosecutions for offences against this Act or for alleged offences by agents or sales representatives against the Land and Business (Sale and Conveyancing) Act 1994; (c) costs consequent on the appointment of an administrator, temporary manager or examiner under this Act; (d) the costs of processing claims under this Division and of paying out those claims to the extent authorised by this Division; (e) the costs of administering and insuring the fund; (f) the payment of amounts, approved by the Minister, towards the cost of— (i) prescribed educational programs conducted for the benefit of agents, sales representatives, property managers or members of the public; or (ii) reviewing the operation of this Act; or (iii) reviewing the operation of the Land and Business (Sale and Conveyancing) Act 1994 insofar as it relates to agents or sales representatives; (g) any other purpose specified by or under this or any other Act. 29A—Division of indemnity fund into two parts (1) The indemnity fund is notionally divided into two parts (Part A and Part B)— (a) one part, Part A, is to consist of the balance of the indemnity fund at any particular time, less the amount standing to the credit of Part B at that time; (b) one part, Part B, is to consist of $13.5 million, as credited to this part of the fund on the commencement of this section, then less any amounts paid from time to time in accordance with the scheme set out in Schedule 2A. (2) Part A will be available— (a) for the purposes of this Division; and (b) for the purposes of any other Act that makes provision for payments from the indemnity fund, and any reference in this Division or in another Act that relates to the indemnity fund will be taken to be a reference to Part A of the indemnity fund (unless the contrary intention appears). (3) Part B will be available for the purposes of Schedule 2A. (4) The Commissioner's powers of investment with respect to the indemnity fund apply to both Part A and Part B. (5) This section expires when Schedule 2A expires and, on that expiry, the division of the indemnity fund into two parts will cease. 30—Claims on indemnity fund (1) A person who has suffered a pecuniary loss as a result of a fiduciary default may make a claim for compensation to the Commissioner. (2) The amount of the claim cannot exceed the sum of— (a) the actual pecuniary loss suffered by the claimant in consequence of the fiduciary default; and (b) any reasonable legal expenses incurred in taking action to recover the loss or in making the claim to the Commissioner, less any amount that the claimant has received or may reasonably be expected to recover (apart from this Division) in reduction of the loss. (3) A person is not entitled to make a claim under this Division where— (a) the agent by whom the fiduciary default was committed, or to whom the fiduciary default relates, was required to be registered or licensed under this Act or a corresponding previous enactment; and (b) that person knew, or ought to have known, at the time of appointing or instructing the agent, that the agent was not so registered or licensed. 31—Limitation of claims (1) The Commissioner may, by notice published in a newspaper circulating generally throughout the State, fix a day (not earlier than three months after the publication of the notice) on or before which claims in respect of a fiduciary default, or a series of fiduciary defaults, referred to in the notice, must be made. (2) A claim that is not made within the time fixed by the notice is barred unless the Tribunal, on application, otherwise determines. (3) No action in defamation lies in respect of the publication, in good faith, of the notice. 32—Establishment and determination of claims (1) A claim for compensation must be made to the Commissioner in a manner and form determined by the Commissioner. (1a) The Commissioner may require a person making a claim— (a) to furnish further information specified by the Commissioner; (b) to verify, by statutory declaration, information furnished for the purposes of making or establishing a claim. (2) The Commissioner must, on receipt of a claim for compensation— (a) give the claimant and the agent or former agent concerned notice of the claim in accordance with the regulations; and (b) allow the claimant and the agent or former agent a reasonable opportunity to appear before the Commissioner personally or by representative to make submissions as to the claim. (3) The Commissioner may do any 1 or more of the following in response to the claim: (a) require the claimant to take specified action to recover the loss (and postpone determination of the claim); (b) determine the claim and, if appropriate, make a payment to the claimant from the indemnity fund; (c) require the claimant to make contractual undertakings as to the assistance that the claimant must give the Commissioner in any action taken by the Commissioner to recover the loss. (4) In deciding whether to require the claimant to take action to recover the loss, and in deciding what action the claimant should be required to take to recover the loss, the Commissioner is to consider the size of the claim, the complexity of the case, the claimant's financial circumstances, the claimant's mental or physical health or capacity and any other factors that the Commissioner considers relevant. (5) The Commissioner must— (a) keep the claimant informed of the progress of the claim in accordance with the regulations; and (b) on making a determination on a claim, give the claimant and the agent or former agent written notice of the determination. 33—Claims by agents (1) An agent who has paid compensation to a person for pecuniary loss suffered in consequence of a fiduciary default committed by a partner or employee of the agent may make a claim for compensation to the Commissioner. (2) The Commissioner must, on receipt of the claim, if satisfied that— (a) all legal or equitable claims in respect of the fiduciary default have been fully satisfied; and (b) the claimant acted honestly and reasonably in all the circumstances of the case, determine the amount of compensation payable to the claimant and, by notice in writing, inform the claimant of the determination. (3) A person is not entitled to make a claim under this section where— (a) the agent by whom the fiduciary default was committed, or to whom the fiduciary default relates, was required to be registered or licensed under this Act or a corresponding previous enactment; and (b) that person knew, or ought to have known, at the time of the default, that the agent was not so registered or licensed. 34—Personal representative may make claim The personal representative of a claimant (including a deceased claimant) is entitled to make the claim on behalf of the claimant or the claimant's estate. 35—Review of Commissioner's determination (1) The claimant or the agent or former agent by whom the fiduciary default was committed or to whom the fiduciary default relates may seek a review of the Commissioner's determination by the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013. (1a) An application for review may be made to the Tribunal within 3 months after the person receives notice of the determination. (2) Where an application for review is not made within the time allowed, the claimant's entitlement to compensation is finally determined for the purposes of this Division. 36—Determination, evidence and burden of proof (1) In determining a claim for compensation under this Division, any possible reduction to which the claimant's entitlement may be subject because of insufficiency of the indemnity fund must be disregarded. (2) In determining a claim for compensation under this Division— (a) an admission or confession may be accepted as evidence of a fiduciary default despite the absence of the person by whom the admission or confession was made; and (b) questions of fact are to be decided on the balance of probabilities. 37—Claimant's entitlement to compensation and interest (1) Subject to any reduction because of insufficiency of the indemnity fund, a claimant is entitled to payment of the amount of compensation determined under this Division. (2) A claimant's entitlement to compensation will (to the extent to which it has not been satisfied or discharged) be increased by interest at the rate fixed by regulation from the first anniversary of the lodgment of the claim with the Commissioner until the entitlement is satisfied or discharged, but interest must not be calculated on any component of the claimant's entitlement that is attributable to interest that has already accrued under this subsection. 38—Rights of Commissioner (1) Where the Commissioner makes a payment (whether in respect of compensation or interest) to a claimant, the Commissioner is, to the extent of the payment, subrogated to the rights of the claimant against a person liable at law or in equity for the fiduciary default in respect of which the payment was made. (2) However, this section does not confer on the Commissioner any right to recover money from a person whose liability in respect of a fiduciary default does not arise from a wrongful or negligent act or omission on that person's part. 39—Insurance in respect of claims against indemnity fund (1) The Commissioner may insure the indemnity fund to such extent as the Commissioner thinks fit against claims under this Division. (2) The cost of the insurance will be paid from the indemnity fund. 40—Insufficiency of indemnity fund (1) Where the indemnity fund is insufficient to pay all outstanding amounts to which claimants are entitled, the Commissioner must make proportionate reductions in the amounts paid out in respect of those entitlements. (2) Where, at the time at which a claimant's entitlement to compensation is determined, other persons have made claims that have not yet been determined, the Commissioner may defer payment of the claimant's entitlement for any period (not exceeding 12 months) in order to allow time for the entitlements of those other claimants to be determined. (3) The Commissioner may set aside a part of the indemnity fund as the Commissioner from time to time considers necessary to protect the interests of persons who— (a) have made claims against the fund that have not been determined; or (b) are likely to make claims against the fund in the future, and, when determining whether payments to claimants should be reduced, the Commissioner must not take into account a part of the fund set aside by the Commissioner. (4) If, after a claimant's entitlement to compensation has been determined, the claimant recovers an amount (that was not allowed for in that determination) in respect of the pecuniary loss suffered by the claimant, the claimant's entitlement to compensation is reduced by the amount recovered. (5) Entitlements in respect of which payments are made under this section are discharged despite the fact that they may not have been satisfied in full. (6) The Commissioner may, with the approval of the Minister, make payments to a person— (a) whose entitlement to compensation has been discharged; or (b) whose entitlement to compensation is insufficient because an amount that the person was expected to recover in respect of the pecuniary loss has not been recovered; or (c) whose claim is barred, but a payment so made does not revive or reinstate an entitlement or claim. 41—Accounts and audit (1) The Commissioner must keep proper accounts of all money received and dealt with under this Division. (2) The Auditor-General may at any time, and must at least once in every calendar year, audit those accounts.