Div 5Conciliation

Division 5 — Conciliation 23C. Conciliation of disputes about transactions 14 Part III — Licensing of agents 24. Applications for licences 16 26. Real estate agents and business agents must be licensed 16 27. Licensing of individuals 17 28. Firms, licensing of 17 29. Bodies corporate, licensing of 18 30. Licence, effect of 19 31. Licensee’s triennial certificate: grant and renewal 19 32. Licensee’s triennial certificate: late renewal 20 33. Licensee’s triennial certificate: late renewal after 12 months 20 34. Conditions on licences and triennial certificates 21 34AA. Imposing special conditions on licences or triennial certificates 22 34AB. Removing special conditions on licences or triennial certificates 23 34A. Commissioner may grant licence or triennial certificate without notice to applicant 24 34B. SAT may suspend licence in some cases 24 34C. Licensee may surrender licence and triennial certificate 24 34D. Firm or body corporate must surrender licence and triennial certificate in certain circumstances 25 35. Licensee to notify Commissioner when commencing or ceasing business 25 36. Registered office of licensee 25 37. Branch office of licensee 26 38. Triennial certificates, contents of 26 39. Licence and triennial certificate not transferable etc. 27 40A. Duplicate licence, certificate of registration or triennial certificate 27 40B. Licensee to comply with prescribed educational requirements 27 40. Business names, use of by licensees 28 41. Notices to be exhibited at offices; particulars to appear on documents 28 Part IV — Registration of sales representatives 42. Natural persons only may be registered 30 43. Applications for registration 30 44. Real estate sales representatives must be registered etc. 30 45. Business sales representatives must be registered etc. 31 46. Partners and directors of licensees to be registered in certain cases 32 47. Natural persons, grant of certificate of registration to 32 48. Certificates of registration, duration and renewal of 33 49. Certificates of registration, late renewal of 34 50. Conditions on certificates of registration 35 50AA. Imposing special conditions on certificates of registration 35 50AB. Removing special conditions on certificates of registration 36 50A. Unopposed applications 38 50B. SAT may suspend registration in some cases 38 50C. Sales representative to comply with prescribed educational requirements 38 51. Registered sales representatives to notify Commissioner of certain changes 39 52. Certificate of registration not transferable 39 53. Certificate of registration, surrender of 39 54. Sales representatives, employment of 40 55. Sales representative to be in service of one person 40 Part V — General controls 56. Franchising agreements, licensee not to carry on business under without Commissioner’s approval 42 57. Developers, principal place of business to be registered and service on 42 58. Developer to notify Commissioner of change in principal place of business 43 59. Developer to keep records of real estate transactions 43 60. Agent not entitled to commission etc. unless licensed and validly appointed 43 61. Maximum remuneration of licensees, fixing of etc. 45 61A. Agents not to demand etc. money etc. for letting etc. from tenants 48 62. Advertising by agents and developers 48 63. Agents etc. to supply signatories of documents with copies 49 64. Conflicts of interest of agents etc. 49 65. Rates etc., agents to ensure payment and apportionment of 50 66. Keys to houses etc. and information about tenancies etc., payment for is an offence 51 Part VI — Agents’ trust accounts 67. Terms used 52 68. Use of trust accounts 52 68A. Client may ask agent for separate trust account 54 68B. Interest on trust accounts to be paid by financial institutions 54 68C. Agents to give Commissioner information about trust accounts 55 69. Money received by agents, duties as to 56 70. Audits of trust accounts 57 71. Date of audit, Commissioner may change 58 72. Auditors, qualification and approval of 59 73. Auditors, appointment of 59 74. Audits of business carried on at more than one place, directions as to 60 75. Approvals etc. under this Part, Commissioner’s power to cancel etc. 60 77. Audits, agents’ duties and auditors’ powers as to 61 78. Audits, bankers’ duties as to 61 79. Auditors’ reports, content of 61 80. Moneys etc. held on trust, statement of by agents 62 81. Auditor’s report to report breaches of law etc. 63 82. Auditors’ duty of confidentiality 63 83. Right of some persons to information in auditors’ reports 64 84. Offences under this Part 64 85. Auditors’ remuneration 65 86. Agents with no accounts to audit 65 87. Accounts of firm or body corporate or agent with branch office, effect of audits as to 65 88. Audit of trust account, Commissioner may do 66 90. Cost of audit done under s. 88 66 91. Confidentiality of audit done under s. 88 67 92. Restraining bank etc. from dealing with agent’s account, SAT’s powers as to 67 93. Suspension of agents, appointment of supervisors etc., SAT’s powers as to 68 94. Order under s. 93 for supervisor, effect of 70 95. Supervisors’ duties 71 96. Hindering etc. supervisors, offence 72 97. Discharge or variation of s. 92 or 93 order 72 98. SAT’s additional powers as to s. 92, 93 and 97 orders; schemes for distributing funds 73 99. Service of s. 92, 93, 97 or 98 orders; penalty for breach of 74 100. Banks etc., duty to disclose certain accounts etc. if required to by authorised person 75 100A. Information about trust accounts, Commissioner’s power to obtain 76 Part VII — Discipline of agents and sales representatives 101. Codes of conduct 79 102. Disciplinary action by SAT, alleging cause for 79 103. Disciplinary action, SAT’s powers as to 80 104. Offences that cause licence and triennial certificate to be cancelled 83 105. Certain offences by licensees, additional sentencing powers for 84 105A. Cancellation of licence due to insufficient resources or cessation of business 85 106. Persons with cancelled licences etc., offences by and in respect of 85 Part VIII — Fidelity Guarantee Account 107. Account established 87 108. Investment of moneys in account 87 109. Moneys to be credited to account 87 110. Expenditure from account 88 112. Administration of account 89 113. Payments to account by applicants for licences etc. 89 114. Cap on payments under s. 113 89 115. Levies for account against certificate holders 90 116. Purpose of account; making claims against account 91 117. Claims against account; recovery from account 92 118. Defences to claims against account 93 119. Subrogation of rights of claimant against account 93 120. Insufficiency in account 93 121. State may insure against claims 95 122. Application of insurance payouts 95 123. Advertising for claims in relation to defaulting licensee 95 124. Documents etc. to support claims, CEO may require 96 124AA. Commissioner may investigate claims against Fidelity Account 96 Part VIIIA — Education and General Purpose Account 124A. Account established; administration of account 98 124B. Moneys to be credited to account 98 124C. Expenditure from account 99 124D. Investment of moneys in account 100 Part IX — Real Estate and Business Agents Interest Account 125. Account established; administration of account 101 126. Moneys to be credited to account 101 127. Expenditure from account 102 128. Investment of moneys in account 102 Part IXA — Assistance to home buyers 131A. Terms used 103 131B. Home Buyers Assistance Account established 104 131C. Investment of moneys in account 104 131D. Moneys to be credited to account 105 131E. Expenditure from account 105 131G. Administration of account 106 131L. Applying for assistance for buyers of first homes 106 131M. Deciding applications for assistance 107 131N. Assistance, payment and application of 108 131O. Criteria for granting assistance, formulating 109 Part X — Miscellaneous 132. Unlicensed assistants to be supervised etc. 111 133. Registers of licensees etc., Commissioner to keep etc. 112 134A. Offence to give false or misleading information 112 134. Commissioner’s certificate 113 135. Annual report by department 114 136. Commissioner to report to Minister on Act’s effectiveness as to protecting against defalcations 114 136A. Refunds of fees, Commissioner’s powers as to 115 137. Protection from personal liability 115 138. Confidentiality of information officially obtained 115 139. Directors of body corporate, liability of 115 140. Other rights and remedies not affected by this Act 116 141. Rights conferred by Act cannot be waived 116 142. General penalty for offences 116 143. Proceedings for offences 117 144. Forms 117 145. Regulations 117 Part XI — Savings and transitional 148. Terms used 120 149. Former Board abolished 120 150. References to former Board 120 151. Immunity continues 121 152. Notices by former Board 121 153. References to former Registrar 121 154. Unfinished investigations by former Board 122 155. Unfinished proceedings by former Board 122 156. Winding‑up former Board 123 157. Final report by former Board 124 158. Staff of former Board 124 159. Transitional regulations 124 Schedule 1 — Qualifications for grant of licence and related matters 1. Qualifications 126 2. Sufficient practical experience defined 127 3. Licence by reason of qualification under cl. 1(c) 128 4. Licence by reason of qualification under cl. 1(d) 128 5. Dead or incapacitated licensee, conduct of business of 128 6. Death or withdrawal of partner in firm or director of body corporate, Commissioner to be notified 129 Notes Compilation table 130 Other notes 135 Defined terms Western Australia Real Estate and Business Agents Act 1978 An Act to make provision with respect to the regulation and supervision of certain persons acting in respect of real estate transactions or certain business transactions, to repeal the *Land Agents Act 1921* 1, and for related purposes. ## Part I — Preliminary ##### 1. Short title This Act may be cited as the *Real Estate and Business Agents Act 1978*. ##### 2. Commencement (1) Subject to subsection (2), the provisions of this Act shall come into operation on such day or days as is or are, respectively, fixed by proclamation. (2) Section 5 shall come into operation on the appointed day 2. [**3.** Deleted: No. 29 of 1982 s. 3.] ##### 4. Terms used (1) In this Act unless the context otherwise requires — agent means a person who is a real estate agent or a business agent, or both a real estate agent and a business agent; appointed day means the day fixed by the Minister pursuant to subsection (2) 2; approved means approved by the Commissioner; Assistance Account means the Home Buyers Assistance Account established under section 131B; auditor means a person appointed under this Act to audit the trust accounts of an 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 the business of an agent but does not have that meaning in paragraph (a) of the interpretation ***business transaction*** and does not mean the business of a developer; business, in paragraph (a) of the interpretation ***business transaction*** means any commercial undertaking or enterprise in respect of any profession, trade, employment, vocation, or calling; business agent means a person whose business either alone or as part of or in connection with any other business, is to act as agent for consideration in money or money’s worth, as commission, reward, or remuneration, in respect of a business transaction as defined by this section, but does not include a person whose business is to so act by reason that — (a) he is appointed by a court as a receiver or receiver and manager of the business of another; or (b) he is an official receiver or trustee within the meaning of the *Bankruptcy Act 1966* of the Commonwealth or any Act in amendment or substitution of that Act; business sales representative means a person who on behalf of an agent negotiates a business transaction irrespective of whether or not the agent is the owner of the business involved, and includes — (a) a person who does so as a member of a firm that is a licensee and the holder of a current triennial certificate unless he is also a licensee and the holder of a current triennial certificate; (b) a person who does so as a director of a body corporate that is a licensee and the holder of a current triennial certificate, unless he is also a licensee and the holder of a current triennial certificate; business transaction — (a) means a sale, exchange or other disposal and a purchase, exchange or other acquisition of a business and any share or interest in a business or the goodwill thereof; and (b) includes any sale, exchange, or other disposal and any purchase, exchange, and other acquisition of goods, chattels or other property relating to a business transaction of the kind specified in paragraph (a); and (c) also includes an option to enter into a business transaction; but (d) does not include the sale, exchange, or other disposal or a purchase, exchange, or other acquisition of a share in the capital of a body corporate carrying on a business or an option in respect thereof; certificate of registration means a certificate of registration as a sales representative under this Act; code of conduct for agents means the code of conduct for agents prescribed and published under section 101(a); code of conduct for sales representatives means the code of conduct for sales representatives prescribed and published under section 101(b); 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; developer means a person whose business either alone or as part of or in connection with any other business, is to act on his own behalf in respect of the sale, exchange, or other disposal of real estate; Fidelity Account means the Real Estate and Business Agents Fidelity Guarantee Account established under section 107; franchising agreement means an agreement whereby a party to the agreement grants to another party to the agreement the right or privilege to carry on business in a manner, over a period, and in a place specified in the agreement; General Purpose Account means the Education and General Purpose Account established under section 124A; Interest Account means the Board Interest Account established under section 125(1); licence means the licence of an agent under this Act; licensed means licensed as an agent under this Act; licensee means a person licensed under this Act; member — [(a) deleted] (b) in Part IXA, means a member of the Advisory Committee; real estate means land within or outside the State and includes land of any tenure and buildings or parts of buildings within or outside the State; real estate agent means a person whose business either alone or as part of or in connection with any other business, is to act as agent for consideration in money or money’s worth, as commission, reward or remuneration, in respect of a real estate transaction as defined by this section but does not include a person whose business is to so act by reason that — (a) he is appointed by a court as a receiver or receiver and manager of the business of another person; or (b) he is an official receiver or trustee within the meaning of the *Bankruptcy Act 1966* of the Commonwealth or any Act in amendment or substitution of that Act; real estate sales representative means a person who on behalf of an agent or a developer negotiates a real estate transaction irrespective in the case of an agent of whether or not the agent is the owner of the real estate involved, and includes — (a) a person who does so as a member of a firm that is a licensee and the holder of a current triennial certificate, unless he is also a licensee and the holder of a current triennial certificate; and (b) a person who does so as a director of a body corporate that is a licensee and the holder of a current triennial certificate unless he is also a licensee and the holder of a current triennial certificate; real estate transaction — (a) means a sale, exchange, or other disposal and a purchase, exchange, or other acquisition of real estate and any exclusive right whether deriving from the ownership of a share or interest in a body corporate or partnership, or otherwise, to the use or occupation of real estate including the leasing, and letting, and the acquisition under lease or letting of tenancy or occupation of real estate; and (b) includes any sale, exchange, or other disposal and any purchase, exchange, or other acquisition of goods, chattels or other property relating to a real estate transaction of a kind specified in paragraph (a); and (ba) includes the collection of rents or other payments for use or occupation; and (c) also includes an option to enter into a real estate transaction; registered and registered sales representative means registered as a sales representative under this Act; registration means registration as a sales representative under this Act; renewal means a renewal of a triennial certificate or of a certificate of registration, as the case requires; repealed Act means the Act repealed by section 5 3; sales representative means a person who is a real estate sales representative or a business sales representative, or both a real estate sales representative and a business sales representative; supervisor means a person appointed by the Commissioner as supervisor of the business of an 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 an agent. (2) The Minister shall by notice published in the *Government Gazette* fix a day to be the appointed day 2 for the purposes of the provisions of this Act that refer to the appointed day. (3) The collection by an agent for or on behalf of another person of moneys in respect of — (a) the consideration; or (b) any terms payments; or (c) any rent or other payment for use or occupation; or (d) any payments under a mortgage or other security, relating to a transaction is deemed to be a service rendered by the agent in his capacity as an agent, and those moneys are deemed to be moneys received by the agent, in the course of his business, for and on behalf of the other person in respect of the transaction, irrespective of whether or not the agent negotiated the transaction or participated in the negotiation thereof. (3a) For the purposes of this Act, moneys collected by an agent for or on behalf of a community corporation within the meaning of the *Community Titles Act 2018* or a strata company within the meaning of the *Strata Titles Act 1985* are deemed to be moneys collected by the agent in respect of a real estate transaction. (4) Nothing contained elsewhere in this Act applies to or in relation to — (a) a body corporate authorised by the law of any State, or of a Territory, of the Commonwealth to apply for and obtain a grant of probate of a will when exercising its power to do so or when exercising any other power conferred on it by such a law; or (b) a financial services licensee (within the meaning of the *Corporations Act 2001* of the Commonwealth), when dealing in securities (within the meaning of section 92 of that Act) that he or she is authorised to deal in by that licence; or (c) a regulated principal (within the meaning of section 1430 of the *Corporations Act 2001* of the Commonwealth), when dealing in securities that he or she is authorised to deal in by Part 10.2 Division 1 Subdivision D of that Act; or (d) a person, other than a licensee, when performing a prescribed duty as an agent for the owner of premises ordinarily used for holiday accommodation, whether or not for consideration, in respect of the right of a person to occupy those premises for a period of not more than 3 consecutive months. [Section 4 amended: No. 74. of 1980 s. 3; No. 10 of 1982 s. 28; No. 29 of 1982 s. 4; No. 40 of 1985 s. 8; No. 98 of 1985 s. 3; No. 59 of 1995 s. 4; No. 26 of 1999 s. 99(2); No. 10 of 2001 s. 222; No. 21 of 2003 s. 20; No. 65 of 2003 s. 59(2); No. 74 of 2003 s. 101; No. 69 of 2006 s. 27; No. 77 of 2006 Sch. 1 cl. 147(1); No. 21 of 2008 s. 696; No. 58 of 2010 s. 81 and 134; No. 47 of 2011 s. 25(2) and (3); No. 32 of 2018 s. 233; No. 25 of 2019 s. 39; No. 9 of 2022 s. 424.] [**5.** Deleted: No. 58 of 2010 s. 82.] ## Part II — Advisory Committee and review [Heading inserted: No. 58 of 2010 s. 83.] [Divisions 1, 1A and 2 (s. 6-18) deleted: No. 58 of 2010 s. 84.] [Heading deleted: No. 58 of 2010 s. 85.] [**19-21.** Deleted: No. 58 of 2010 s. 86.] ##### 22. Powers of investigation The *Fair Trading Act 2010* section 61 and Part 6 of that Act apply to this Act. [Section 22 inserted: No. 58 of 2010 s. 87.] ##### 23. Application for review by SAT (1) Any person aggrieved by a reviewable decision may apply to the State Administrative Tribunal for a review of the decision. (2) In subsection (1) — person aggrieved means — (a) a person whose licence or triennial certificate is affected by a reviewable decision or who, under Part III, applies for the grant of a licence or applies for the renewal of a triennial certificate; (b) a person whose certificate of registration is affected by a reviewable decision or who, under Part IV, applies for the grant or renewal of a certificate of registration; (c) a licensee who has, or seeks, the Commissioner’s approval under section 56 to carry on business pursuant to a franchising agreement or another party to the agreement; (d) a person affected by a decision of the Commissioner under Part VI; (e) a person claiming against, or seeking the leave of the chief executive officer to commence an action in relation to, the Fidelity Account; reviewable decision means — (a) a decision of the Commissioner under Part III other than a determination of the form in which an application is to be made; (b) a decision of the Commissioner under Part IV other than a determination of the form in which an application is to be made; (c) a decision of the Commissioner under section 56; (d) a decision of the Commissioner under Part VI; (e) a decision of the chief executive officer under section 116 or 117. (3) If a decision under section 116 or 117 has not been made before the commencement of the *Consumer Protection Legislation Amendment Act 2014* section 69 in respect of a claim made before 1 July 2011, the decision — (a) may be made on or after that commencement by the Commissioner; and (b) is taken to be a reviewable decision for the purposes of this section. (4) A decision under section 116 or 117 made by the chief executive officer before the commencement of the *Consumer Protection Legislation Amendment Act 2014* section 69 is taken to be a reviewable decision made immediately after that commencement for the purposes of this section. (5) The amendments made to this section by the *Consumer Protection Legislation Amendment Act 2014* section 69 do not affect the review of a reviewable decision by the State Administrative Tribunal that began, but was not completed, before the commencement of that section. [Section 23 inserted: No. 55 of 2004 s. 1005; amended: No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 88 and 134; No. 23 of 2014 s. 69.] ### Division 4 — Advisory committees [Heading inserted: No. 34 of 1998 s. 9.] ##### 23A. Advisory committees, establishing etc. (1) The Minister may, after a request from the Commissioner, establish an advisory committee or committees (a committee) to provide advice to the Commissioner for consideration in the performance of the Commissioner’s functions and the exercise of the Commissioner’s powers. (2) A committee is to consist of not more than 7 persons or another number of persons that is prescribed for the purposes of this subsection who have such knowledge, experience or qualifications as the Minister considers appropriate to the matters on which the committee is to advise. [(3) deleted] (4) The Minister may make such arrangements as the Minister considers appropriate for the receipt of nominations for the purposes of an appointment under subsection (2). (5) The Minister is to appoint one of the members of a committee to be the chairperson of the committee. (6) The Minister may give directions in writing to a committee as to its procedure but otherwise a committee may determine its own procedure. (7) The department is to provide a committee with such support services as it may reasonably require. (8) A member of a committee — (a) is to hold office for such term not exceeding 2 years as is specified in the instrument appointing the member; and (b) is, on the expiration of the member’s term of office, eligible for reappointment; and (c) may hold office on more than one committee contemporaneously. (9) A member of a committee is to be paid from moneys standing to the credit of the General Purpose Account such remuneration and allowances as are determined in the case of the member by the Minister on the recommendation of the Public Sector Commissioner. (10) The Minister may terminate the appointment of a member of a committee for inability, inefficiency or misbehaviour. (11) If a member of a committee — (a) is, according to the *Interpretation Act 1984* section 13D, a bankrupt or a person whose affairs are under insolvency laws; or (b) becomes permanently incapable of performing his or her duties as a member; or (c) resigns his or her office by signing a written notice of resignation and giving it to the Minister; or (d) absents himself or herself, except on leave duly granted by the Minister, from meetings of that committee for a period exceeding 8 weeks; or (e) ceases to hold any qualification required for becoming or being a member, the office of that member becomes vacant. [Section 23A inserted: No. 34 of 1998 s. 9; amended: No. 77 of 2006 Sch. 1 cl. 147(2); No. 39 of 2010 s. 89; No. 58 of 2010 s. 89 and 134.] ##### 23B. Minister may delegate s. 23A powers (1) The Minister may, by instrument in writing, delegate to the Commissioner or any other person, either generally or as otherwise provided in the instrument, any of the Minister’s powers under section 23A but the Minister cannot delegate this power of delegation. (2) Anything done by a delegate under a delegation under this section has the same force and effect as if it had been done by the Minister. [Section 23B inserted: No. 34 of 1998 s. 9; amended: No. 58 of 2010 s. 134.] ### Division 5 — Conciliation [Heading inserted: No. 34 of 1998 s. 9.] ##### 23C. Conciliation of disputes about transactions (1) The Commissioner, or a person nominated by the Commissioner, may act as a conciliator for the purposes of this section. (2) A conciliator’s function is to assist the parties to a transaction to resolve a dispute about the transaction by — (a) arranging for the parties to hold informal discussions about the dispute; and (b) helping in the conduct of those discussions; and (c) if possible, assisting the parties to reach agreement. (3) A conciliation process is not to start or continue once proceedings before the State Administrative Tribunal in relation to the transaction have been instituted. (4) No party to a transaction may be represented by another person during the conciliation process unless the conciliator, on the ground that the process will not work effectively without that representation, otherwise determines. (5) Evidence of anything said or admitted during the conciliation process — (a) is not admissible in proceedings before a court or tribunal, whether under this Act or any other law; and (b) cannot be used as ground for an investigation or inquiry under this Act. (6) Nothing in this section — (a) prevents the parties to a transaction from resolving a dispute in relation to the transaction at any time, whether through the conciliation process or not; or (b) requires a conciliator to participate in a conciliation process or the department to provide officers or other persons for that purpose. (7) In this section — party, in relation to a transaction, includes a person financially affected by the transaction even though the transaction was not entered into by that person. [Section 23C inserted: No. 34 of 1998 s. 9; amended: No. 55 of 2004 s. 1020; No. 58 of 2010 s. 90.] ## Part III — Licensing of agents ##### 24. Applications for licences (1) An application for a licence shall be made in writing and in a manner and form determined by the Commissioner in respect of such an application and shall contain such information as is required by the Commissioner in respect of such an application. [(2), (3) deleted] (4) In respect of any particular application the applicant shall furnish the Commissioner with such further information as the Commissioner determines. (5) If the Commissioner is considering making an adverse decision in relation to the application, the Commissioner must give the applicant the opportunity to give additional information in relation to that application. [Section 24 amended: No. 58 of 2010 s. 91 and 134; No. 23 of 2014 s. 70; No. 44 of 2016 s. 30.] [**25.** Deleted: No. 23 of 2014 s. 71.] ##### 26. Real estate agents and business agents must be licensed (1) On and after the appointed day 2 a person shall not carry on business, or by any means hold himself or itself out, as a real estate agent, or a business agent, or both a real estate agent and a business agent, unless he or it is licensed as such under this Act and holds a current triennial certificate in respect of the licence. Penalty for this subsection: a fine of $100 000. (2) For subsection (1), a person is taken not to be licensed or holding a current triennial certificate in respect of the licence if the person is required to surrender a licence and triennial certificate under section 34D(2) or (3). [Section 26 amended: No. 43 of 1994 s. 11; No. 25 of 2019 s. 40 and 62.] ##### 27. Licensing of individuals (1) Subject to this Act, an individual who applies to the Commissioner for a licence and pays to the Commissioner the prescribed fee for the licence shall be granted and may hold a licence if the Commissioner is satisfied that the individual — (a) is of or over the age of 18 years; and (b) is a person of good character and repute and a fit and proper person to hold a licence; and (c) has sufficient material and financial resources available to enable them to comply with the requirements of this Act; and (d) understands fully the duties and obligations imposed by this Act on agents. (2) In subsection (1)(b) fit and proper includes being qualified in accordance with Schedule 1 but subject to the savings and exceptions provided in this Act. [Section 27 amended: No. 58 of 2010 s. 134; No. 23 of 2014 s. 72; No. 25 of 2918 s. 41.] ##### 28. Firms, licensing of Subject to this Act, 2 or more persons constituting a firm who apply to the Commissioner for a licence and pay to the Commissioner the prescribed fee for the licence shall be granted and may hold a licence if the Commissioner is satisfied that — (a) all of the natural persons, if any, by whom the firm is constituted and all of the directors of, and all of the persons concerned in the management or control of, any body corporate by which the firm is constituted are persons of good character and repute and are persons fit to be concerned as directors of, or in the management and control of, an agent’s business; and (b) the persons by whom or by which the firm is constituted have sufficient material and financial resources available to them to enable them to comply with the requirements of this Act; and (c) where the firm is constituted by not more than 3 persons at least one of them is licensed or where the firm is constituted by more than 3 persons at least 2 of them are licensed; and (d) the person in *bona fide* control of the business operated under the licence is licensed. [Section 28 amended: No. 58 of 2010 s. 134.] ##### 29. Bodies corporate, licensing of Subject to this Act, a body corporate which applies to the Commissioner for a licence and pays to the Commissioner the prescribed fee for the licence shall be granted and may hold a licence if the Commissioner is satisfied that — (a) all of the directors of the body corporate, and all of the persons concerned in the management or conduct of the body corporate, are persons of good character and repute and are persons fit to be concerned as directors of, or in the management and control of, an agent’s business; and (b) it has sufficient material and financial resources available to it to comply with the requirements of this Act; and (c) unless for good cause shown by the applicant the Commissioner otherwise determines, where there are not more than 3 directors of the body corporate at least one of them is licensed or where there are more than 3 directors of the body corporate at least 2 of them are licensed; and (d) the person in *bona fide* control of the business operated under the licence is licensed. [Section 29 amended: No. 58 of 2010 s. 134; No. 25 of 2019 s. 42.] ##### 30. Licence, effect of (1) Subject to this Act, a licence is continuous. (2) A licence does not confer on a licensee the right to carry on business as an agent unless he holds a current triennial certificate in respect of the licence. (2a) A licensee ceases to be licensed if the licensee — (a) does not hold a current triennial certificate in respect of the licence; and (b) does not pay to the Commissioner in accordance with the regulations the fee prescribed for the purposes of this subsection. [(3), (4) deleted] [Section 30 amended: No. 74 of 1980 s. 5; No. 56 of 1995 s. 40; No. 55 of 2004 s. 1006; No. 58 of 2010 s. 134; No. 25 of 2019 s. 43.] ##### 31. Licensee’s triennial certificate: grant and renewal (1) Subject to this Act, the Commissioner shall on the grant of a licence grant the licensee a certificate which confers on the licensee the right to carry on business as an agent for the period of 3 years commencing on the date on which it is granted. (2) Subject to this Act, a triennial certificate may be renewed for subsequent periods of 3 years each by payment of the prescribed fee and delivery to the Commissioner of an application signed — (a) by the licensee, if the licensee is an individual; or (b) by the person in *bona fide* control of the business of the licensee, if the licensee is a firm or a body corporate. (3) The Commissioner must not renew a licensee’s triennial certificate unless the Commissioner is satisfied of the matters in — (a) for an individual — section 27(1)(b), (c) and (d); or (b) for a firm — section 28(a), (b), (c) and (d); or (c) for a body corporate — section 29(a), (b), (c) and (d). [Section 31 amended: No. 34 of 1998 s. 10; No. 55 of 2004 s. 1007; No. 58 of 2010 s. 134; No. 25 of 2019 s. 44.] ##### 32. Licensee’s triennial certificate: late renewal (1) If a licensee’s triennial certificate is renewed within the period of one month immediately succeeding the day on which the triennial certificate expired or was surrendered, the renewal takes effect on and from the day next succeeding the day on which the triennial certificate expired or was surrendered. (2) If a licensee’s triennial certificate is renewed more than 1 month but not more than 12 months after the day on which the triennial certificate expired or was surrendered, the renewal takes effect — (a) if the Commissioner is satisfied that there is reasonable cause for the renewal to take effect on and from the day after the day on which the triennial certificate expired or was surrendered — on that day; or (b) otherwise — on the day the renewal is granted. [Section 32 amended: No. 58 of 2010 s. 134; No. 25 of 2019 s. 45.] ##### 33. Licensee’s triennial certificate: late renewal after 12 months (1) This section applies if — (a) a licensee’s triennial certificate expires or was surrendered; and (b) the licensee applies to renew the certificate more than 12 months after the day on which the triennial certificate expired or was surrendered. (2) The application for renewal must be made in writing and in a manner and form determined by the Commissioner in respect of such an application and shall contain such information as is required by the Commissioner in respect of such an application. [(3) deleted] (4) In respect of any particular application the licensee must furnish the Commissioner with such further information as the Commissioner determines. (5) If the Commissioner is considering making an adverse decision in relation to the application, the Commissioner must give the licensee the opportunity to give additional information in relation to that application. (6) If the triennial certificate is renewed, the renewal takes effect on the day the renewal is granted. [Section 33 amended: No. 58 of 2010 s. 93 and 134; No. 44 of 2016 s. 31; No. 25 of 2019 s. 46.] ##### 34. Conditions on licences and triennial certificates (1) It is a condition of every licence that the licensee must comply with the provisions of this Act and the code of conduct for agents. (2) It is a condition of every licence that the licensee must comply with any special condition to which the licensee’s licence or triennial certificate is subject under section 34AA. [Section 34 inserted: No. 25 of 2019 s. 47.] ##### 34AA. Imposing special conditions on licences or triennial certificates (1) In this section — licensee includes an applicant for a licence. (2) The Commissioner may, at any time, impose a special condition on a licence or triennial certificate. (3) Before imposing a special condition on a licence or triennial certificate, the Commissioner must — (a) give a licensee notice in writing setting out — (i) that the Commissioner proposes to impose the special condition; and (ii) the reasons for the proposed decision; and (iii) that the licensee may make submissions to the Commissioner in relation to the proposed decision within the time specified in the notice; and (b) consider any submissions received under paragraph (a)(iii). (4) After making a decision under subsection (2), the Commissioner must — (a) notify the licensee of the Commissioner’s decision; and (b) if the decision is to impose a special condition on the licence or triennial certificate, give the licensee notice in writing setting out — (i) the reasons for the decision; and (ii) that a person aggrieved by the Commissioner’s decision may apply to the State Administrative Tribunal for a review of the decision under section 23. [Section 34AA inserted: No. 25 of 2019 s. 47.] ##### 34AB. Removing special conditions on licences or triennial certificates (1) The Commissioner may remove a special condition imposed on a licensee’s licence or triennial certificate — (a) at any time; or (b) on application by the licensee. (2) If a licensee makes an application under subsection (1)(b), the Commissioner must, before deciding not to remove the special condition on the licensee’s licence or triennial certificate — (a) give the licensee notice in writing setting out — (i) that the Commissioner proposes to make a decision not to remove the special condition; and (ii) the reasons for the proposed decision; and (iii) that the licensee may make submissions to the Commissioner in relation to the proposed decision within the time specified in the notice; and (b) consider any submissions received under paragraph (a)(iii). (3) After making a decision on an application by a licensee, the Commissioner must — (a) notify the licensee of the Commissioner’s decision; and (b) if the decision is to not remove the special condition, give the licensee notice in writing setting out — (i) the reasons for the decision; and (ii) that a person aggrieved by the Commissioner’s decision may apply to the State Administrative Tribunal for a review of the decision under section 23. [Section 34AB inserted: No. 25 of 2019 s. 47.] ##### 34A. Commissioner may grant licence or triennial certificate without notice to applicant (1) Subject to this Part, a licence may be granted and a triennial certificate may be granted or renewed (as long as special conditions are not imposed or changed), by the Commissioner without notice to the applicant. (2) Where the Commissioner performs a function under subsection (1), the Commissioner shall forthwith deliver the licence or triennial certificate or the renewed triennial certificate, as the case may be, to the applicant. [Section 34A inserted: No. 55 of 2004 s. 1008; amended: No. 58 of 2010 s. 94 and 134; No. 23 of 2014 s. 73.] ##### 34B. SAT may suspend licence in some cases (1) Where the State Administrative Tribunal makes an order against a licensee and payment is not made in accordance with the order or the order is otherwise not complied with or is breached, the State Administrative Tribunal may suspend the licence until the payment is made, or for such period or upon such event occurring as the State Administrative Tribunal thinks fit. (2) The power conferred on the State Administrative Tribunal by subsection (1) is in addition to, and does not derogate from, the powers conferred on it by Part VII or by the *State Administrative Tribunal Act 2004*. [Section 34B inserted: No. 55 of 2004 s. 1008.] ##### 34C. Licensee may surrender licence and triennial certificate A licensee may surrender the licensee’s triennial certificate, or licence and triennial certificate held in respect of the licence, at any time. [Section 34C inserted: No. 25 of 2019 s. 48.] ##### 34D. Firm or body corporate must surrender licence and triennial certificate in certain circumstances (1) This section applies to a licensee that is a firm or body corporate if paragraph (c) or (d) of section 28 or 29 (as is relevant) ceases to apply in relation to the licensee. (2) The licensee must, within 5 days after the day on which the paragraph ceased to apply to the licensee, surrender the licensee’s licence and triennial certificate held in respect of the licence, unless the licensee is carrying on business under Schedule 1 clause 6. (3) If a licensee carries on business under Schedule 1 clause 6 then, at the end of the period referred to in that clause, the licensee must immediately surrender the licensee’s licence and triennial certificate unless the licensee satisfies section 28(c) and (d) or section 29(c) and (d) (as is relevant). [Section 34D inserted: No. 25 of 2019 s. 48.] ##### 35. Licensee to notify Commissioner when commencing or ceasing business A licensee shall, within 14 days after commencing or ceasing to carry on business as an agent, give to the Commissioner notice in writing of that fact. [Section 35 amended: No. 58 of 2010 s. 134.] ##### 36. Registered office of licensee (1) A licensee shall, on and after the day on which he commences to carry on business as an agent, and for so long as he carries on that business, have a registered office in the State. Penalty: $1 000. (2) Any summons, notice, order, or other document to be served on a licensee, may be served by leaving it at his registered office or by sending it by registered post addressed to the licensee at that office. (3) An office may be registered by giving written notice of the situation of the office to the Commissioner and a registration may be transferred from one office to the other by written notice given to the Commissioner. [Section 36 amended: No. 43 of 1994 s. 11; No. 58 of 2010 s. 134.] ##### 37. Branch office of licensee (1) A licensee shall register any branch office of his business by giving written notice of the situation of the office to the Commissioner on or before the day on which he commences to carry on business at that branch office. Penalty: $1 000. (2) A licensee shall nominate, and have at all times in his service at a registered branch office, as manager of that office, another licensee who is the holder of a current triennial certificate. Penalty: $1 000. (3) The manager shall not be a licensee nominated as manager by any other licensee or in respect of any other office, and shall not carry on business as an agent on his own account. [Section 37 amended: No. 43 of 1994 s. 11; No. 58 of 2010 s. 134.] ##### 38. Triennial certificates, contents of (1) Each place of business of a licensee and the name of the other licensee who is manager of that place and any changes thereto shall be endorsed on the triennial certificate of the first‑mentioned licensee. (2) The place of business of a branch office shall be endorsed on the triennial certificate of the licensee who is manager of that office. ##### 39. Licence and triennial certificate not transferable etc. (1) A person shall not hold more than one licence or more than one triennial certificate and shall not carry on more than one business as an agent thereunder. (2) A licence or a triennial certificate is not transferable. (3) A licensee shall not in any way permit, or hold himself out as being willing to permit, another person to use the licence or a triennial certificate of the licensee. Penalty for this subsection: a fine of $100 000. [Section 39 amended: No. 43 of 1994 s. 11; No. 25 of 2019 s. 62.] ##### 40A. Duplicate licence, certificate of registration or triennial certificate If a licence, certificate of registration or triennial certificate has been lost or destroyed, the Commissioner may issue a duplicate licence, duplicate certificate of registration or duplicate triennial certificate on payment by the holder of the prescribed fee. [Section 40A inserted: No. 23 of 2014 s. 74.] ##### 40B. Licensee to comply with prescribed educational requirements A licensee must comply with the educational requirements prescribed by the regulations. Penalty: a fine of $5 000. [Section 40B inserted: No. 25 of 2019 s. 49.] ##### 40. Business names, use of by licensees (1) The use of a business name by a licensee is not subject to the approval of the Commissioner but — (a) subject to subsection (2), a licensee may carry on business as an agent under only one business name which shall be endorsed on his triennial certificate; and (b) all licensees carrying on the business of an agent under a business name shall have their surnames and initials on all correspondence from them in that business. (2) A licensee who was, immediately before the appointed day 2 carrying on business as a real estate agent under a business name and as a business agent under another business name may continue to do so but so that he uses only one business name for the business of a real estate agent and only one business name for the business of a business agent, in which case both business names shall be endorsed on his triennial certificate. (3) A licensee who alters the name, style, title, or designation under which he carries on business as an agent shall within 14 days after the day on which he first uses that altered name, style, title, or designation in connection with that business give notice in writing to the Commissioner of the altered name, style, title, or designation. Penalty: $1 000. [Section 40 amended: No. 43 of 1994 s. 11; No. 58 of 2010 s. 134.] ##### 41. Notices to be exhibited at offices; particulars to appear on documents (1) A licensee shall exhibit, and keep exhibited, in a prominent place at his registered office, and at every branch office of his business, so as to be easily read by persons entering therein — (a) a notice of his name, and of the fact that he is a licensed real estate and business agent, together with the name, style, title, or designation under which he carries on business as a real estate agent or a business agent, or both, if that business is, or those businesses are, not carried on in his own name; and (b) in the case of a branch office, a notice of the name of the manager and the address of the registered office of the licensee. (2) On all correspondence, and on the outside of all documents prepared, in the course of business of a licensee at his registered office and every branch office — (a) the licensee shall be identified as a real estate agent or business agent, or both, and the registered office of his business shall be shown; and (b) in the case of a branch office, the manager shall also be identified as a real estate agent or business agent, or both, and the address of the branch office shall also be shown. ## Part IV — Registration of sales representatives ##### 42. Natural persons only may be registered A certificate of registration as a real estate and business sales representative shall not be granted otherwise than to an individual natural person. ##### 43. Applications for registration (1) An application for a certificate of registration shall be made in writing and in a manner and form determined by the Commissioner in respect of such an application and shall contain such information as is required by the Commissioner in respect of such an application. [(2) deleted] (3) In respect of any particular application the applicant shall furnish the Commissioner with such further information as the Commissioner determines. (4) If the Commissioner is considering making an adverse decision in relation to the application, the Commissioner must give the applicant the opportunity to give additional information in relation to that application. [Section 43 amended: No. 58 of 2010 s. 95 and 134; No. 44 of 2016 s. 32.] ##### 44. Real estate sales representatives must be registered etc. (1) On and after the appointed day 2, a person not being a licensee who is the holder of a current triennial certificate shall not act as, or carry out any of the functions of, a real estate sales representative unless he is the holder of a current certificate of registration and he acts, or carries out those functions, for and on behalf of a licensee who is the holder of a current triennial certificate, or for and on behalf of a developer. Penalty for this subsection: a fine of $25 000. (2) On and after the appointed day 2, a person not being a licensee who is the holder of a current triennial certificate shall not unless he is the holder of a current certificate of registration hold himself out by any means as a real estate sales representative or as being in the employment of, or as acting for or on behalf of a licensee who is the holder of a current triennial certificate as a real estate sales representative, or as being in the employment of, or acting for or on behalf of a developer as a real estate sales representative. Penalty for this subsection: a fine of $25 000. (3) On and after the appointed day 2, a real estate sales representative who is the holder of a current certificate of registration shall not hold himself out by any means as being in the employment of, or as acting for or on behalf of a licensee who is the holder of a current triennial certificate, or as being in the employment of, or as acting for or on behalf of a developer, unless that licensee or developer, as the case may be, is his employer, principal or partner. Penalty for this subsection: a fine of $25 000. [Section 44 amended: No. 43 of 1994 s. 11; No. 25 of 2019 s. 62.] ##### 45. Business sales representatives must be registered etc. (1) On and after the appointed day 2, a person not being a licensee who is the holder of a current triennial certificate shall not act as, or carry out any of the functions of, a business sales representative unless he is the holder of a current certificate of registration and he acts, or carries out those functions for and on behalf of a licensee who is the holder of a current triennial certificate. Penalty for this subsection: a fine of $25 000. (2) On and after the appointed day 2, a person not being a licensee who is the holder of a current triennial certificate shall not unless he is the holder of a current certificate of registration hold himself out by any means as a business sales representative or as being in the employment of, or as acting for or on behalf of a licensee who is the holder of a current triennial certificate. Penalty for this subsection: a fine of $25 000. (3) On and after the appointed day 2, a business sales representative who is the holder of a current certificate of registration shall not hold himself out by any means as being in the employment of, or acting for or on behalf of, a licensee who is the holder of a current triennial certificate unless that licensee is his employer, principal, or partner. Penalty for this subsection: a fine of $25 000. [Section 45 amended: No. 43 of 1994 s. 11; No. 25 of 2019 s. 62.] ##### 46. Partners and directors of licensees to be registered in certain cases On and after the appointed day 2 a person resident in the State, and not being a licensee who is the holder of a current triennial certificate — (a) shall not as a member of a firm that is a licensee and holds a current triennial certificate; or (b) shall not as a director of a body corporate that is a licensee and holds a current triennial certificate, carry out the functions of a sales representative unless he is the holder of a current certificate of registration. Penalty: a fine of $20 000. [Section 46 amended: No. 43 of 1994 s. 11; No. 25 of 2019 s. 62.] ##### 47. Natural persons, grant of certificate of registration to (1) Subject to this Act, an individual natural person who applies to the Commissioner for a certificate of registration as a real estate and business sales representative and pays to the Commissioner the prescribed fee for that certificate shall be granted and may hold a certificate of registration if the Commissioner is satisfied that — (a) he is of or over the age of 18 years; (b) he is a person of good character and repute and a fit and proper person to hold a certificate of registration; (c) he understands fully the duties and obligations imposed by this Act on persons involved in negotiating real estate transactions and business transactions. (2) In subsection (1)(b) fit and proper includes having such qualification by way of experience or otherwise as is prescribed, or, if no qualification is prescribed, includes having such qualification by way of experience or otherwise as is approved. [Section 47 amended: No. 58 of 2010 s. 134.] ##### 48. Certificates of registration, duration and renewal of (1) Subject to this Act, a certificate of registration remains in force for the prescribed period. (2) Subject to this Act a certificate of registration may be renewed for subsequent prescribed periods. (3) An application to the Commissioner for renewal of a certificate shall be — (a) accompanied by the prescribed fee and, in the case of an expired certificate, any additional amount prescribed by way of penalty for a late application; and (b) signed by the sales representative. (4) The Commissioner must not renew a sales representative’s certificate of registration unless the Commissioner is satisfied — (a) of the matters in section 47(1)(b) and (c); and (b) that the sales representative was employed by a licensee at the time of making the application or will be employed by a licensee upon the renewal of the certificate. [(5) deleted] [Section 48 amended: No. 56 of 1995 s. 42; No. 34 of 1998 s. 12; No. 55 of 2004 s. 1009; No. 58 of 2010 s. 134; No. 25 of 2019 s. 50.] ##### 49. Certificates of registration, late renewal of (1) If a certificate of registration is renewed after, but within 28 days of, the day on which it expired, the renewal shall be taken for all purposes to have taken effect on the day immediately succeeding the day on which it expired. (2) Where a certificate of registration is renewed more than 28 days but not more than 12 months after the day on which the certificate of registration expired and the sales representative satisfies the Commissioner that there is reasonable cause for the renewal to be deemed to take effect for the prescribed period on and from the day next succeeding the day on which the certificate of registration expired, the Commissioner shall so determine and the renewal shall take effect accordingly. (3) Where a certificate of registration expires and is not renewed within the period of 12 months thereafter, an application for a renewal shall be made at least 28 days prior to the date on which it is intended the renewal shall take effect unless the applicant satisfies the Commissioner that there is reasonable cause for the application being made out of time. (4) An application for renewal referred to in subsection (3) shall be made in writing and in a manner and form determined by the Commissioner in respect of such an application and shall contain such information as is required by the Commissioner in respect of such an application. [(5) deleted] (6) In respect of any particular application referred to in subsection (3) the applicant shall furnish the Commissioner with such further information as the Commissioner determines. (7) If the Commissioner is considering making an adverse decision in relation to the application, the Commissioner must give the applicant the opportunity to give additional information in relation to that application. [Section 49 amended: No. 56 of 1995 s. 43; No. 58 of 2010 s. 96 and 134; No. 44 of 2016 s. 33.] ##### 50. Conditions on certificates of registration (1) It is a condition of every certificate of registration that the registered sales representative must comply with the provisions of this Act and the code of conduct for sales representatives. (2) It is a condition of every certificate of registration that the registered sales representative must comply with any special condition to which the sales representative’s certificate of registration is subject under section 50AA. [Section 50 inserted: No. 25 of 2019 s. 51.] ##### 50AA. Imposing special conditions on certificates of registration (1) In this section — registered sales representative includes an applicant for a certificate of registration. (2) The Commissioner may, at any time, impose a special condition on a certificate of registration. (3) Before imposing a special condition on a certificate of registration, the Commissioner must — (a) give a registered sales representative notice in writing setting out — (i) that the Commissioner proposes to impose the special condition; and (ii) the reasons for the proposed decision; and (iii) that the registered sales representative may make submissions to the Commissioner in relation to the proposed decision within the time specified in the notice; and (b) consider any submissions received under paragraph (a)(iii). (4) Subsection (3) does not apply if the special condition to be imposed on the certificate of registration restricts the type of work that may be performed under the certificate because the sales representative does not have a particular qualification that the sales representative is required to have under section 47(2) to perform the work. (5) After making a decision under subsection (2), the Commissioner must — (a) notify the registered sales representative of the Commissioner’s decision; and (b) if the decision is to impose a special condition on the certificate of registration, give the registered sales representative notice in writing setting out — (i) the reasons for the decision; and (ii) that a person aggrieved by the Commissioner’s decision may apply to the State Administrative Tribunal for a review of the decision under section 23. [Section 50AA inserted: No. 25 of 2019 s. 51.] ##### 50AB. Removing special conditions on certificates of registration (1) The Commissioner may remove a special condition imposed on a registered sales representative’s certificate of registration — (a) at any time; or (b) on application by the registered sales representative. (2) If a registered sales representative makes an application under subsection (1)(b), the Commissioner must, before deciding not to remove the special condition on the registered sales representative’s certificate of registration — (a) give the registered sales representative notice in writing setting out — (i) that the Commissioner proposes to make a decision not to remove the special condition; and (ii) the reasons for the proposed decision; and (iii) that the registered sales representative may make submissions to the Commissioner in relation to the proposed decision within the time specified in the notice; and (b) consider any submissions received under paragraph (a)(iii). (3) After making a decision on an application by a registered sales representative, the Commissioner must — (a) notify the registered sales representative of the Commissioner’s decision; and (b) if the decision is to not remove the special condition, give the registered sales representative notice in writing setting out — (i) the reasons for the decision; and (ii) that a person aggrieved by the Commissioner’s decision may apply to the State Administrative Tribunal for a review of the decision under section 23. [Section 50AB inserted: No. 25 of 2019 s. 51.] ##### 50A. Unopposed applications (1) Subject to this Part, a certificate of registration may be granted or renewed (as long as special conditions are not imposed or changed) by the Commissioner without notice to the applicant. (2) Where the Commissioner performs a function under subsection (1), the Commissioner shall forthwith deliver the certificate of registration or the renewed certificate of registration, as the case may be, to the applicant. [Section 50A inserted: No. 55 of 2004 s. 1010; amended: No. 58 of 2010 s. 97 and 134.] ##### 50B. SAT may suspend registration in some cases (1) Where the State Administrative Tribunal makes an order against a sales representative and payment is not made in accordance with the order or the order is otherwise not complied with or is breached, the State Administrative Tribunal may suspend the registration until the payment is made, or for such period or upon such event occurring as the State Administrative Tribunal thinks fit. (2) The power conferred on the State Administrative Tribunal by subsection (1) is in addition to, and does not derogate from, the powers conferred on it by Part VII or by the *State Administrative Tribunal Act 2004*. [Section 50B inserted: No. 55 of 2004 s. 1010.] ##### 50C. Sales representative to comply with prescribed educational requirements A sales representative must comply with the educational requirements prescribed by the regulations. Penalty: a fine of $5 000. [Section 50C inserted: No. 25 of 2019 s. 52.] ##### 51. Registered sales representatives to notify Commissioner of certain changes (1) A registered sales representative shall, within 14 days after commencing or ceasing in the employment of, or to act for or on behalf of, a licensee or a developer, as the case may be, as a sales representative, give to the Commissioner notice in writing of that fact and such further particulars thereof as are prescribed or as are required by the Commissioner. (2) A registered sales representative shall give to the Commissioner notice in writing of any change in the address of the registered sales representative as soon as practicable after that change takes place. [Section 51 amended: No. 56 of 1995 s. 45; No. 58 of 2010 s. 134.] ##### 52. Certificate of registration not transferable (1) A certificate of registration is not transferable. (2) A registered sales representative shall not in any way permit or hold himself out as being willing to permit, another person to use the certificate of registration of the registered sales representative. Penalty: $3 000. [Section 52 amended: No. 43 of 1994 s. 11.] ##### 53. Certificate of registration, surrender of (1) A person may at any time surrender a certificate of registration held by him and shall do so if he ceases to have the qualifications for holding the certificate of registration. (2) Despite the surrender by a person of a certificate of registration, this Act applies, for the purpose of enabling the person to be investigated or otherwise dealt with for a matter arising before the surrender, as if the certificate had not been surrendered. [Section 53 amended: No. 55 of 2004 s. 1011.] ##### 54. Sales representatives, employment of (1) An agent shall not employ as a sales representative, or permit to carry out in the business of the agent any of the functions of a sales representative, any other person, not being a licensee who is the holder of a current triennial certificate, unless that other person is a registered sales representative. Penalty: $3 000. (2) A developer shall not employ as a real estate sales representative, or permit to carry out in the business of the developer, any of the functions of a real estate sales representative, any other person, not being a licensee who is the holder of a current triennial certificate, unless that other person is a registered sales representative. Penalty: $3 000. [Section 54 amended: No. 43 of 1994 s. 11.] ##### 55. Sales representative to be in service of one person (1) A registered sales representative shall not accept or undertake employment, or be or remain in the service of, or by any means hold himself out as being in the service of, or act as sales representative for or on behalf of, any person who is an agent or a developer at any time when he is employed by, or in the service of, any other person who is an agent or a developer. Penalty: $3 000. (2) A person who is an agent or a developer shall not employ, or have in his service as a sales representative, any person who is, to the knowledge of that person who is an agent or a developer, at that time employed by, or in the service of, any other person who is an agent or a developer. Penalty: $3 000. (3) An agent or a developer shall not whether directly or indirectly give any commission, reward or other valuable consideration to any other person, not being a licensee who holds a current triennial certificate, for acting as, or performing any of the functions of, a sales representative unless the other person is a registered sales representative in the service of the agent or developer, as the case may be, as a sales representative. Penalty: $3 000. (4) Nothing contained elsewhere in this section applies to or in relation to a director of a body corporate that is a developer when acting as, or carrying out the functions of, a real estate sales representative for the body corporate in its business as a developer. [Section 55 amended: No. 43 of 1994 s. 11.] ## Part V — General controls ##### 56. Franchising agreements, licensee not to carry on business under without Commissioner’s approval (1) A licensee shall not carry on business pursuant to a franchising agreement unless he has the approval of the Commissioner to do so, and where he does so without such approval each party to the agreement commits an offence. Penalty: $10 000. (2) Approval of the Commissioner for a licensee to carry on business pursuant to a franchising agreement may be subject to such conditions as the Commissioner sees fit to impose, and where those conditions are not complied with each party to the agreement commits an offence. Penalty: $10 000. (3) Where a licensee carries on business pursuant to a franchising agreement — (a) each party to the agreement is liable to penalties imposed for failure to comply with the provisions of Part VI; and (b) all the parties to the agreement are jointly and severally liable for any defalcation of the licensee. [Section 56 amended: No. 43 of 1994 s. 11; No. 58 of 2010 s. 134.] ##### 57. Developers, principal place of business to be registered and service on (1) A developer shall, on and after the day on which he commences to carry on business as a developer, and for so long as he carries on that business, have his principal place of business in the State registered with the Commissioner by giving written notice of the situation of that place to the Commissioner. Penalty: $1 000. (2) Any summons, notice, order, or other document to be served on a developer, may be served by leaving it at his principal place of business or by sending it by registered post addressed to the developer at that place. [Section 57 amended: No. 43 of 1994 s. 11; No. 58 of 2010 s. 134.] ##### 58. Developer to notify Commissioner of change in principal place of business (1) Where there is any change in the situation of the principal place of business of a developer, he shall immediately give written notice of the new situation to the Commissioner. Penalty: $1 000. (2) Where written notice is given pursuant to subsection (1) the Commissioner shall change the registration of the principal place of business of the developer accordingly. [Section 58 amended: No. 43 of 1994 s. 11; No. 58 of 2010 s. 134.] ##### 59. Developer to keep records of real estate transactions A developer shall keep a record of all real estate transactions in which he has been involved and that record shall be kept in such manner, shall include such details, and shall be preserved for such period as is approved. ##### 60. Agent not entitled to commission etc. unless licensed and validly appointed (1) An agent is not entitled to receive any commission, reward, or other valuable consideration in respect of his services in that capacity unless — (a) he is licensed in that capacity and he holds a current triennial certificate in respect of his licence when he renders the services; and (b) he has a valid appointment to act in that capacity which is in writing signed by the person for whom the services are or are to be rendered or by some other person lawfully authorised to sign on behalf of the person for whom the services are or are to be rendered. (2) An appointment to act as an agent is not valid unless — (a) it is contained in a document which — (i) clearly sets out the services that are or are to be rendered; and (ii) where specific property is to be the subject of those services, clearly identifies the property; and (iia) clearly sets out the method by which the amount of any commission, reward or other valuable consideration to be received for those services is to be calculated; and (iii) contains such other information, if any, as is prescribed; and (b) the document is not an offer or acceptance or a contract, or a document purporting to be an offer or acceptance or a contract, binding or purporting to bind a party thereto to a transaction; and (c) the person obtaining the signature to the document gives a true copy thereof to the signatory immediately after the signing thereof (the onus of proof of which is upon the person obtaining the signature). (3) A person shall not demand or receive any commission, reward, or other valuable consideration in contravention of subsection (1) or (2), or both. Penalty: $5 000. (4) Any commission, reward, or other valuable consideration received in contravention of subsection (1) or (2), or both, may be recovered as a civil debt recoverable summarily in any court of competent jurisdiction. [Section 60 amended: No. 43 of 1994 s. 11; No. 59 of 1995 s. 9; No. 34 of 1998 s. 14.] ##### 61. Maximum remuneration of licensees, fixing of etc. (1) The Commissioner may, with the approval of the Minister, by notice published in the *Government Gazette* fix the maximum amount of remuneration, whether by way of commission or otherwise, that a licensee is to receive for a service rendered by the licensee in the course of and incidental to the licensee’s business as an agent. (2) The Commissioner may, with the approval of the Minister, by further notice published in the *Government Gazette*, amend or revoke a notice under subsection (1). (3) An amount fixed under subsection (1) takes effect on the date on which the notice fixing the amount is published in the *Government Gazette* or on such subsequent date as is specified in the notice. (3a) The Commissioner may fix an amount under subsection (1) by reference to — (a) the type of transaction negotiated and its value; or (b) the type of service rendered and the value of the property in respect of which the service was rendered. (3b) If an amount is fixed under subsection (1) in respect of a service rendered by a licensee, the licensee is not entitled to receive for that service, in the licensee’s capacity as an agent, any commission, reward or other valuable consideration which exceeds that amount in value. (3c) If an amount is not fixed under subsection (1) in respect of a service rendered by a licensee, the licensee is not entitled to demand, receive or hold for that service, in the licensee’s capacity as an agent, any commission, reward or other valuable consideration which is unjust in the circumstances. (4) The remuneration of an agent for services rendered by him in his capacity as agent in respect of a transaction he has negotiated is payable only on settlement of the transaction unless — (a) there is a failure to settle the transaction and that failure is due to the fault of the agent’s principal; or (b) it is a prescribed transaction. (4a) In subsection (4) — prescribed transaction means any of the following transactions — (aa) the sale of a proposed lot under the *Community Titles Act 2018* before the lot is created; (a) the sale of a proposed lot under the *Strata Titles Act 1985* before the lot is created; (b) any other transaction prescribed, or that belongs to a class of transactions prescribed, for the purposes of this definition; settlement, in relation to a transaction — (a) where the transaction is to be completed by the payment of the purchase price by way of a single payment (over and above the deposit), means the payment of the purchase price; or (b) where the purchaser is obliged to make 2 or more payments to the vendor (over and above any deposit paid within 28 days of the execution of the contract) before the purchaser is entitled to a conveyance or transfer of the subject matter of the contract, means the time at which the purchaser is entitled to possession, occupation or control of the subject matter or the time at which the purchaser has paid at least 10% of the purchase price, whichever is the later, or at any other time as may be prescribed by the regulations; or (c) where the transaction is of a kind specified in regulations, has the meaning prescribed by the regulations in relation to that kind of transaction; transaction means — (a) a sale, exchange, or other disposal and a purchase, exchange, or other acquisition of real estate and any exclusive right whether deriving from the ownership of a share or interest in a body corporate or partnership; or (b) a sale, exchange, or other disposal and a purchase, exchange, or other acquisition of goods, chattels or other property relating to a real estate transaction of a kind specified in paragraph (a); or (c) a business transaction of a kind referred to in paragraph (a) or (b) of the definition of ***business transaction***, or both such a real estate transaction and a business transaction. (5) A licensee shall not demand, receive, or hold any commission, reward, or other valuable consideration in contravention of this section. Penalty: $5 000. (6) Any commission, reward, or other valuable consideration received or held in contravention of this section may be recovered as a civil debt recoverable summarily in any court of competent jurisdiction. [Section 61 amended: No. 128 of 1987 s. 89; No. 43 of 1994 s. 11; No. 59 of 1995 s. 10; No. 34 of 1998 s. 15; No. 58 of 2010 s. 134; No. 44 of 2016 s. 34; No. 30 of 2018 s. 179; No. 32 of 2018 s. 234.] ##### 61A. Agents not to demand etc. money etc. for letting etc. from tenants (1) An agent shall not demand or receive from a tenant a commission, reward or other valuable consideration for a service rendered by the agent in connection with — (a) the letting or management of residential premises; or (b) the renewal, extension or continuation of a tenancy where, upon the expiry of the term of the tenancy, a further right of occupancy of the same premises is granted to the same tenant. Penalty: $5 000. (2) A commission, reward or other valuable consideration received in contravention of subsection (1) is recoverable by the tenant as a debt due in a court of competent jurisdiction. (3) In this section — residential premises, tenancy and tenant have the same meanings as in section 3 of the *Residential Tenancies Act 1987*. [Section 61A inserted: No. 59 of 1995 s. 11.] ##### 62. Advertising by agents and developers (1) Any advertisement in respect of the business of an agent or a developer shall not be published without his authority. (2) A duly authorised advertisement in respect of the business of an agent or developer shall contain such details as are sufficient to identify the agent or developer, as the case may be. (3) A person who enters into a contract as a consequence of an advertisement which contravened subsection (2) is not thereby entitled to avoid the contract. (4) In a proceeding for a contravention of subsection (1) or (2) it is a defence if the accused establishes that he is a person whose business is to publish or arrange for the publication of advertisements and that he received the advertisement in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to such a contravention. [Section 62 amended: No. 84 of 2004 s. 82; No. 58 of 2010 s. 98.] ##### 63. Agents etc. to supply signatories of documents with copies Where a person signs any offer, acceptance, or contract, or any document purporting to be an offer, acceptance, or contract relating to any transaction that has been negotiated, or that is the subject of negotiation, wholly or in part by an agent, a developer, or a sales representative, in the course of his business or employment as such, the agent, developer, or sales representative, as the case may be, shall forthwith supply the person who has signed the offer, acceptance, contract, or document, with a true copy thereof (the onus of proof of which is upon the person obtaining the signature). ##### 64. Conflicts of interest of agents etc. (1) An agent shall not have, directly or indirectly, any interest, otherwise than in his capacity as an agent, in any transaction in which he acts or purports to act as agent, unless his principal has given prior written consent thereto. Penalty: $5 000. (2) A sales representative or other person in the employment of an agent shall not have, directly or indirectly, any interest, other than an interest that exists by virtue only of his employment, in any transaction in which the agent acts or purports to act unless the agent’s principal has given prior written consent thereto. Penalty: $5 000. (3) A court before which any person is convicted of an offence under this section may order that person to pay over to the agent’s principal any profit that that person has made, or is, in the opinion of the court, likely to make from the transaction. (4) An agent shall not, whether directly or indirectly, demand, receive, or hold any reward or other valuable consideration for or in relation to any transaction in respect of which the agent or an employee of the agent has an interest in contravention of this section. (5) Any reward or other valuable consideration received or held in contravention of this section may be recovered as a civil debt recoverable summarily in any court of competent jurisdiction. [Section 64 amended: No. 43 of 1994 s. 11; No. 50 of 2003 s. 88(2).] ##### 65. Rates etc., agents to ensure payment and apportionment of (1) Subject to subsections (2) and (3), where a real estate transaction has been negotiated by an agent it is the agent’s duty to the purchaser to ascertain that all rates, taxes, and outgoings then payable, which are by statute a charge on the real estate, and which, as between the vendor and the purchaser, are payable by the vendor are paid by him, and that all such rates, taxes, and outgoings then accruing are duly apportioned between the vendor and purchaser. (2) Subject to subsection (3), where a real estate transaction has been negotiated in part by one agent and in part by another, they are jointly and severally liable for the proper performance of the duty mentioned in subsection (1). (3) An agent may, at his own expense, engage another person to perform, on behalf of the agent the duty mentioned in subsection (1), or if the agent’s principal instructs him to engage another person to perform that duty or assist in its performance the agent may do so at the expense of his principal, but in either case the agent and the other person are jointly and severally liable for the proper performance of that duty and, where the case requires, are jointly and severally so liable with the other agent. ##### 66. Keys to houses etc. and information about tenancies etc., payment for is an offence (1) Any person who pays, gives, or receives, or offers, promises, or agrees to pay, give, or receive, a sum of money or other consideration — (a) for obtaining or making available a key of a house or other building or part of a house or other building; or (b) for information relating — (i) to tenancy, occupation, or use, however described; or (ii) to the possibility or likelihood of tenancy, occupation, or use, however described, of the whole or part of a house or other building, commits an offence. Penalty: $5 000. (2) Subsection (1) does not apply in relation to — (a) a person, other than a licensee or a sales representative, whose business is or includes the selling or cutting of keys at a reasonable charge; or (b) any commission, reward, or remuneration to which a licensee is entitled for effecting or arranging a real estate transaction of leasing or letting, or acquiring under lease or letting, tenancy, occupation, or use of the whole or part of a house or other building. [Section 66 amended: No. 74 of 1980 s. 6; No. 43 of 1994 s. 11.] ## Part VI — Agents’ trust accounts ##### 67. Terms used In this Part, unless the context otherwise requires — authorised financial institution means a bank or other body that is prescribed or belongs to a class of bodies that is prescribed; bank account means an account kept with a bank or other similar body; banker means the manager, or other officer, for the time being in charge of the office of a bank or other body in which any account of an agent is kept; business day means a day other than Saturday, Sunday, or a public holiday; separate account means a trust account referred to in section 68A(1); trust accounts means accounts relating to moneys received or held by an agent for or on behalf of any other person in respect of transactions; year means a period of 12 months ending on 31 December, subject however to the provisions of section 71. [Section 67 amended: No. 59 of 1995 s. 12; No. 26 of 1999 s. 99(3).] ##### 68. Use of trust accounts (1) Every agent who holds a current triennial certificate must maintain at least 1 trust account exclusively for the purposes of this Act, designated or evidenced as such, in the prescribed manner, with an authorised financial institution and must, as soon as practicable, pay to the credit of that account or those accounts all moneys received by the agent for or on behalf of any other person in respect of transactions. (2) Moneys so paid into any such trust account shall not be available for the payment of the debt of any other creditor of the agent, or be liable to be attached or taken in execution under the order or process of any court at the instance of any such creditors. (3) An agent may pay out of a trust account such of the proper charges relating to transactions as are payable by the persons on whose behalf the moneys are received but may do so only when those charges lawfully fall due. (4) Moneys received by an agent for or on behalf of another person in respect of a transaction shall not be withdrawn from a trust account except for the purposes of the transaction, or as otherwise authorised by this Act, or as otherwise authorised by the person or persons lawfully entitled to the moneys. (5) An agent shall pay moneys withdrawn from a trust account to the person or persons lawfully entitled or authorised to receive them. (6) An agent shall — (a) keep full and accurate accounts of all money received or held by him on account of any other person and of all payments made by him of that money; and (b) before the end of the next business day after the day on which the money is received or paid, enter in the accounts particulars of the amount so received or paid and the person from whom it was so received or to whom it was so paid; and (c) keep the accounts in such manner that they can be conveniently and properly audited; and (d) correctly balance the accounts at the end of each month. [Section 68 amended: No. 59 of 1995 s. 13; No. 7 of 2022 s. 46.] ##### 68A. Client may ask agent for separate trust account (1) A person may request that moneys paid by that person to an agent in respect of a transaction be deposited to the credit of a separate interest bearing trust account maintained in accordance with section 68. (2) A request shall be in writing. (3) An agent shall, subject to subsection (4), comply with a request. (4) Where requirements are prescribed under subsection (6), an agent shall only comply with a request if satisfied that those requirements have been met. (5) An agent shall ensure that all interest credited to a separate account is paid to the person who requested the deposit of moneys in that account. (6) Regulations made under section 145 may prescribe requirements to be met before a request can be complied with and, without limiting this subsection, those requirements may relate to — (a) the amount of moneys paid to the agent; or (b) the type of transaction in respect of which the moneys are paid; or (c) the length of time for which the moneys are to be deposited. (7) In this section — request means a request under subsection (1). [Section 68A inserted: No. 59 of 1995 s. 14.] ##### 68B. Interest on trust accounts to be paid by financial institutions (1) Every authorised financial institution with which a trust account is maintained shall pay to the credit of the Interest Account interest on the balance of the trust account at the prescribed rate at such times as are prescribed. (2) Subsection (1) does not apply to a separate account. (3) Where a court convicts an authorised financial institution of an offence under subsection (1) and interest required to be paid under that subsection remains outstanding, the court may, in addition to imposing a penalty, order the institution to pay to the credit of the Interest Account an amount equal to the amount of that interest, and any such order may be enforced as if it were a judgment of the court. (4) In regulations made under section 145 the prescribed rate referred to in subsection (1) may be prescribed by reference to a market rate indicator specified in the regulations. [Section 68B inserted: No. 59 of 1995 s. 14; amended: No. 47 of 2011 s. 25(4).] ##### 68C. Agents to give Commissioner information about trust accounts (1) When an agent opens or closes a trust account, the agent shall, as soon as is practicable, inform the Commissioner in writing of the opening or closure of the trust account and, in doing so, shall specify — (a) the name and number of the trust account; and (b) the name and address of the authorised financial institution with which the trust account is or was maintained. (2) Subsection (1) does not apply to a separate account. (3) If an agent’s trust account is overdrawn, both the agent and the authorised financial institution with which the trust account is maintained shall, as soon as is practicable, inform the Commissioner in writing of — (a) the name and number of the trust account; and (b) the amount by which the trust account is overdrawn. [Section 68C inserted: No. 59 of 1995 s. 14; amended: No. 58 of 2010 s. 134.] ##### 69. Money received by agents, duties as to (1) When an agent receives money for or on behalf of any other person, the agent shall — (a) unless the money is received by electronic transfer, immediately give to the person paying the money a receipt containing such information as is prescribed; and (b) keep a record of the money received. (2) A record under subsection (1)(b) shall be kept in the prescribed manner and contain such information as is prescribed. (3) The agent shall produce records kept under subsection (1)(b) to the auditor at every audit, and at such other times as the auditor may reasonably require. [(4) deleted] (5) Subsection (3) does not apply in the case of an agent if the agent’s auditor certifies to the Commissioner that he is satisfied with the system employed by the agent and that the records of moneys received are so kept and entered up as to enable the accounts to be properly and conveniently audited, and the Commissioner approves of the system employed by the agent of recording the receipt of moneys. (6) On receipt of any moneys by an agent in respect of a transaction, he shall render to the person on whose behalf the money is received an account in writing of all such moneys and of the application thereof. [Section 69 amended: No. 74 of 1980 s. 7; No. 59 of 1995 s. 15; No. 58 of 2010 s. 134.] ##### 70. Audits of trust accounts (1) Every agent who holds a current triennial certificate during the whole or any part of a year shall cause his trust accounts for that year, or part of a year, as the case may be, to be audited by an auditor duly qualified or approved under this Part. (2) The auditor shall conduct the audit in accordance with accepted auditing practice, including selective testing when the auditor considers it appropriate and in accordance with such other requirements as are determined by the Commissioner. (3) The auditor shall within 3 months after the end of each year — (a) deliver to the Commissioner a report of the result of the audit, verified by a statutory declaration of the auditor, in an approved form; and (b) deliver a copy of the report so verified to the agent. (4) The agent shall retain the copy of the report and produce it on demand pursuant to section 80(3). (5) The Commissioner may, in circumstances he or she considers appropriate, extend the time limit for lodging reports. (6) The auditor shall deliver an interim report to the Commissioner if at any time he discovers any irregularity in the trust accounts of the agent or discovers any other matter in respect of those accounts which the auditor considers should be reported to the Commissioner and he shall verify the interim report by statutory declaration and deliver a copy of the report so verified to the agent. (7) The Commissioner may require the auditor to furnish further information or carry out a further audit at any time, and the auditor shall comply with that requirement, and the cost of so doing shall be paid by the agent if the Commissioner so directs but otherwise shall be paid by the Commissioner from moneys standing to the credit of the Fidelity Account. (8) Apart from the annual audit and any interim audit provided for in this section, where, for any reason, the triennial certificate of an agent ceases to have effect under this Act, there shall, within the period of 3 months thereafter, be a termination audit of the agent’s trust account, and the termination audit shall be arranged and conducted in accordance with such provisions of this Part in respect of the annual audit as are capable of being applied to the termination audit, and the auditor shall within 2 months after the end of that 3 months period deliver to the Commissioner a report of such termination audit. [Section 70 amended: No. 29 of 1982 s. 12; No. 59 of 1995 s. 42; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 99 and 134.] ##### 71. Date of audit, Commissioner may change (1) Notwithstanding anything else in this Part, an agent may apply in writing to the Commissioner to fix some date other than 31 December, as the date up to which his trust accounts are to be audited, and the Commissioner may, in the Commissioner’s discretion, permit the agent to substitute such other date for 31 December. (2) The Commissioner may, upon giving not less than one year’s notice to the agent affected, revoke any permission granted under this section. (3) When permission is granted under this section the Commissioner shall fix the period in respect of which the first audit shall be made, and the permission may be given upon such conditions, with respect to the time within which the first or any subsequent audit shall be made or otherwise, as the Commissioner may think fit. (4) So long as the permission remains in force, and subject to any conditions which may be imposed, section 70 shall, in relation to the agent concerned, be read as if such other date was substituted for 31 December. (5) When any date has been substituted for 31 December under this section, the date so substituted shall not be further changed except by permission of the Commissioner granted in accordance with this section. [Section 71 amended: No. 58 of 2010 s. 134.] ##### 72. Auditors, qualification and approval of (1) Subject to subsection (2), no person is qualified to act as an auditor under this Part unless he is a person registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the *Corporations Act 2001* of the Commonwealth. (2) In districts in respect of which the Commissioner is satisfied that no person registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the *Corporations Act 2001* of the Commonwealth is available, such other persons with such other qualifications as are approved by the Commissioner may act as auditors under this Part. (3) An auditor shall disclose to the Commissioner any de facto relationship or any close relationship by blood or marriage he has with an agent whose trust accounts he has been appointed to audit or any business dealings he has with or through such agent at any time during his appointment as auditor, and the Commissioner may, if the Commissioner thinks fit, disqualify that auditor from acting in that particular case. [Section 72 amended: No. 10 of 1982 s. 28; No. 59 of 1995 s. 16; No. 10 of 2001 s. 220; No. 28 of 2003 s. 175; No. 58 of 2010 s. 134.] ##### 73. Auditors, appointment of (1) Subject to the provisions of this Part the auditor by whom the audit of, and reports on, an agent’s trust accounts are to be made shall be appointed and employed for that purpose by that agent. (2) An agent shall appoint his auditor at the time of applying for his licence. (3) Subject to this Act, an auditor’s appointment under this section is continuous unless the Commissioner approves a subsequent change in the appointment. [Section 73 amended: No. 58 of 2010 s. 134.] ##### 74. Audits of business carried on at more than one place, directions as to In the event of an agent carrying on business at more than one place the Commissioner may from time to time give such directions as the Commissioner thinks fit for separate audits of the trust accounts in respect of the business carried on at each place, or for the acceptance by the auditor of the certificates of some person or persons approved by the Commissioner with respect to the examination of the trust accounts kept at any branch office of the business. [Section 74 amended: No. 58 of 2010 s. 134.] ##### 75. Approvals etc. under this Part, Commissioner’s power to cancel etc. The Commissioner may, if in the Commissioner’s opinion just cause exists for doing so — (a) cancel or suspend the right of any person to act as auditor under this Part; or (b) vary or revoke any other approval, direction, permission, or authority granted or given by the Commissioner under this Part. [Section 75 amended: No. 58 of 2010 s. 134.] [**76.** Deleted: No. 55 of 2004 s. 1012.] ##### 77. Audits, agents’ duties and auditors’ powers as to (1) For the purposes of an audit or report under this Part every agent shall, as and when the auditor requires, produce to the auditor his books and all papers, accounts, documents, and securities in his possession, custody, or power in any way relating to any moneys received by the agent for or on behalf of any other person and shall furnish the auditor with all such information and particulars as he reasonably requires. (2) The auditor may examine such books, papers, accounts, documents, and securities at any time, either during, or after the end of, the period in respect of which the audit is made. ##### 78. Audits, bankers’ duties as to Every banker of an agent shall, on request of any auditor engaged in the audit of that agent’s trust accounts under this Part produce to that auditor all such books, papers, accounts, documents and securities as may be reasonably necessary for the purposes of the audit. ##### 79. Auditors’ reports, content of Every auditor of an agent’s trust accounts shall include in his report furnished pursuant to section 70 a statement as to the following matters — (a) whether the trust accounts of such agent have in the opinion of the auditor been kept regularly and properly written up; and (b) whether the trust accounts of such agent have been ready for examination at the periods appointed by the auditor; and (c) whether such agent has complied with the auditor’s requirements; and (d) whether in the opinion of the auditor such agent’s trust accounts are, and have been during the period of the audit, in order or otherwise; and (e) any matter or thing in relation to such trust accounts which should in the opinion of the auditor be communicated to the Commissioner. [Section 79 amended: No. 74 of 1980 s. 10; No. 59 of 1995 s. 17; No. 58 of 2010 s. 134.] ##### 80. Moneys etc. held on trust, statement of by agents (1) Every agent who holds a current triennial certificate shall prepare and certify under his hand and produce to the auditor who audits his trust accounts a statement setting forth in detail particulars of — (a) moneys held, on the last day of the period to which the audit relates, by the agent for or on behalf of any other person; and (b) negotiable or bearer securities or deposit receipts in the name of the agent which represent moneys drawn from the agent’s trust accounts and which are held by the agent on that day. (2) The auditor shall examine the statement and endorse on it a certificate as to whether or not it is correct, and deliver it to the agent. (3) The statement so delivered shall be retained by the agent and be produced on demand to the auditor making the next succeeding audit of the agent’s trust accounts together with a copy of the report of the last preceding audit of those accounts verified by statutory declaration of the then auditor. (4) Where an agent’s accounts are being audited for the first time or, where for any other reason, no statement containing the particulars set out in subsection (1) and relating to the previous period of audit is available for the purpose of audit, the agent shall in lieu thereof make out and produce to the auditor before the making of his report, a statement containing the like particulars as to moneys and negotiable securities held on the first day of the period to which the audit relates. (5) Every statement made under this section shall be verified by the statutory declaration of the agent, or, in the case of a firm, by the statutory declaration of one of the partners, or, in the case of a body corporate, by the person in *bona fide* control of the agent’s business. ##### 81. Auditor’s report to report breaches of law etc. If an auditor in the course of auditing an agent’s trust accounts discovers that the accounts are not kept in such a manner as to enable them to be properly audited, or discovers any matter which appears to him to involve dishonesty or a breach of the law on the part of the agent, or discovers loss or deficiency of trust moneys, or failure to pay or account for any such moneys, or to comply with the provisions of this Act he shall fully set out the facts so discovered by him in the report to be delivered to the Commissioner. [Section 81 amended: No. 58 of 2010 s. 134.] ##### 82. Auditors’ duty of confidentiality (1) Except where this Part provides otherwise an auditor shall not divulge to any person, or in any proceeding, any information which he has obtained in the course of conducting any audit under this Part. (2) An auditor is not guilty of a breach of subsection (1) by disclosing information — (a) by means of or in a report made pursuant to this Part; or (b) in or for the purpose of any legal proceedings arising out of any such report or instituted in connection with the trust accounts of the agent to whom the information relates. ##### 83. Right of some persons to information in auditors’ reports (1) On request by any person interested in any moneys or securities held or which ought to be held or which have been received by an agent, the Commissioner may disclose to such person or his solicitor such portion of any report of an auditor, or of any statutory declaration, statement, or other document delivered to the Commissioner under this Part as affects or may affect such person. (2) A report of an auditor under this Part or a statutory declaration, statement, or other document delivered to the Commissioner under this Part shall be available under the supervision of the Commissioner for inspection by any other auditor appointed to audit the accounts of the same agent for the next succeeding year. [Section 83 amended: No. 58 of 2010 s. 100 and 134.] ##### 84. Offences under this Part (1) A person who contravenes or does not observe any of the foregoing provisions of this Part commits an offence. Penalty for this subsection: (a) in the case of an offence against section 68(4) or (5), a fine of $25 000, or 2 years’ imprisonment; (b) in the case of an offence against section 68B(1), a fine of $50 000; (c) in any other case, a fine of $25 000. (2) If an offence against those provisions is committed by a body corporate, the body corporate itself and every director, manager, secretary or other officer of the body corporate who commits, authorises or permits the act or omission constituting the offence, commits the offence. [Section 84 amended: No. 43 of 1994 s. 11; No. 59 of 1995 s. 18; No. 25 of 2019 s. 53.] ##### 85. Auditors’ remuneration Subject to the other provisions of this Part, the reasonable fees and expenses of an auditor for an audit under this Part shall be payable by the agent. ##### 86. Agents with no accounts to audit An agent who holds a current triennial certificate but who, in the course of his business, has in any year neither received nor held any money for or on behalf of any other person shall be deemed to have complied with this Part if within the period of 3 months after the end of that year he makes a statutory declaration to that effect and delivers it to the Commissioner. [Section 86 amended: No. 58 of 2010 s. 134.] ##### 87. Accounts of firm or body corporate or agent with branch office, effect of audits as to (1) Where trust accounts are kept by a firm of agents an audit of those accounts under this Part and the certificates and report of the auditor thereof operate as regards those trust accounts as an audit certificate and report in relation to each agent who is a member of such firm and in relation to the agent who is in *bona fide* control of the agent’s business of the firm. (2) Where trust accounts are kept by a body corporate an audit of those accounts under this Part and the certificates and report of the auditor thereof operate as regards those trust accounts as an audit certificate and report in relation to an agent who is a director of that body corporate and in relation to the agent who is in *bona fide* control of the agent’s business of the body corporate. (3) Where trust accounts are kept by an agent who or which has a branch office an audit of those accounts, including the accounts of the branch office, under this Part and the certificates and report of the auditor thereof operate as regards those trust accounts as an audit certificate and report in relation to an agent who is the manager of the branch office. ##### 88. Audit of trust account, Commissioner may do Without prejudice to the operation of the foregoing provisions of this Part, where the Commissioner is of opinion that it is in the public interest to do so, the Commissioner may, at any time, cause the trust accounts of an agent to be audited by an auditor nominated in writing by the Commissioner for that purpose. [Section 88 amended: No. 58 of 2010 s. 134.] [**89.** Deleted: No. 74 of 1980 s. 9.] ##### 90. Cost of audit done under s. 88 (1) The cost of an audit carried out pursuant to section 88 shall be as agreed between the Commissioner and the auditor and paid as the Commissioner in writing directs, either by the Commissioner from moneys standing to the credit of the Fidelity Account or by the agent whose trust accounts have been the subject of the audit. (2) Where the cost of an audit referred to in subsection (1) is payable by the agent, the Commissioner may in the first instance pay it from moneys standing to the credit of the Fidelity Account, but thereupon the amount of that cost is a civil debt recoverable summarily in any court of competent jurisdiction by the Commissioner on behalf of the Fidelity Account. [Section 90 amended: No. 29 of 1982 s. 12; No. 59 of 1995 s. 42; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 134.] ##### 91. Confidentiality of audit done under s. 88 The provisions of section 82 apply to an auditor nominated by the Commissioner under section 88 with such modifications as circumstances require. [Section 91 amended: No. 74 of 2003 s. 101; No. 23 of 2014 s. 75.] ##### 92. Restraining bank etc. from dealing with agent’s account, SAT’s powers as to (1) Where the Commissioner, on an application made by the Commissioner to the State Administrative Tribunal, shows by evidence on affidavit to the satisfaction of the State Administrative Tribunal that — (a) there are reasonable grounds for believing that there is a deficiency in the trust account of any agent; or (b) there has been undue or unreasonable refusal, neglect, or delay on the part of any agent in paying moneys, (i) which are, or may be, or have been payable out of the trust account of the agent; or (ii) which were required to be paid into the trust account by the agent under the provisions of this Part, to a person who is entitled thereto or is authorised to receive the moneys, the State Administrative Tribunal may, if it thinks fit, make an order that the manager or other officer for the time being in charge of the bank or other body in which the trust account or any other account in the name of the agent is kept be restrained, until the order is made absolute or discharged, from paying out, transferring or otherwise dealing with any moneys standing to the credit of the trust account or any other account kept at the bank or other body in the name of the agent. (2) An order made under the provisions of this section may contain such terms and conditions as the State Administrative Tribunal in the circumstances thinks fit and the order may relate to all or any one or more of the trust or other accounts, as the State Administrative Tribunal determines. (3) The order shall be made in the first instance *ex parte*, without any notice to the agent, and is an order to show cause only. (4) Unless the agent referred to in the order shows to the State Administrative Tribunal within the time specified in the order sufficient cause to the contrary, the order, after proof of service as required by section 99 shall be made absolute. (5) In this section and in such provisions of other following sections of this Part as relate to this section or an order made under it — (a) trust account includes a bank account, whether a general or a separate account into which account, moneys received or held by an agent for or on behalf of any other person are or were required to be paid under this Part; and (b) agent includes a person who has carried on business as an agent at any time within a period of 12 months prior to the date of the making of the application under subsection (1). [Section 92 amended: No. 59 of 1995 s. 40(1); No. 26 of 1999 s. 99(4); No. 55 of 2004 s. 1021; No. 58 of 2010 s. 134.] ##### 93. Suspension of agents, appointment of supervisors etc., SAT’s powers as to (1) Where the State Administrative Tribunal, on the application of the Commissioner, notice whereof shall be given to the agent, is satisfied that there are reasonable grounds for believing that an agent is, for any reason incapable of properly conducting his business, or is not conducting it in accordance with this Act, the State Administrative Tribunal may — (a) suspend the agent from carrying on his business for such period as may be specified in the order; and (b) restrain the agent and his bankers and their respective servants and agents from dealing in all or any of the bank accounts of the agent, subject to such terms and conditions as the State Administrative Tribunal thinks fit; and (c) authorise the Commissioner to appoint a supervisor of the business of the agent; and (d) authorise the Commissioner to suspend the agent from carrying on his business until further notice; and (e) make such other and further orders as the State Administrative Tribunal thinks fit. (2) Where the State Administrative Tribunal is satisfied, on the application of the Commissioner, that a sole agent has died, the State Administrative Tribunal may — (a) restrain the personal representative, and the former servants, agents, and bankers, of the deceased agent, and the servants and agents of those former bankers from dealing in all or any of the bank accounts of the deceased agent, subject to such terms and conditions as the State Administrative Tribunal thinks fit; and (b) authorise the Commissioner to appoint a supervisor of the business of the agent. (3) Where the State Administrative Tribunal authorises the Commissioner to appoint a supervisor pursuant to the power conferred by subsection (1) or (2) the State Administrative Tribunal — (a) may order that the supervisor be empowered to withdraw moneys from any bank account of the agent or deceased agent; and (b) may order that the Commissioner — (i) take possession of the moneys constituting the trust account of the agent or deceased agent or, where the case requires, the balance of such moneys; and (ii) credit such moneys or such balance to a separate agency special purpose account established for the Commissioner under section 16 of the *Financial Management Act 2006*; and (iii) deal with those moneys according to law. (4) If an order is made under subsection (3)(b) — (a) the Commissioner may, on the certificate of the supervisor, pay to him or as he directs in the certificate, out of the moneys credited to the separate agency special purpose account under the order, such amount or amounts as are specified in the certificate, without enquiring as to, or being liable in respect of, the correctness of the certificate or the application of any money paid on the certificate; and (b) the State Administrative Tribunal may, on the application of the Commissioner, or any person interested, give such directions as the State Administrative Tribunal thinks fit for the payment by the Commissioner of any part of the moneys credited to the separate agency special purpose account under the order. [Section 93 amended: No. 59 of 1995 s. 42; No. 55 of 2004 s. 1021; No. 77 of 2006 Sch. 1 cl. 147(4) and (5); No. 58 of 2010 s. 134.] ##### 94. Order under s. 93 for supervisor, effect of (1) Where an order made under section 93 authorises the Commissioner to appoint a supervisor, the Commissioner during the currency of the order — (a) may, on such terms and conditions as to remuneration and indemnity as the Commissioner thinks fit appoint a person, licensed or unlicensed, as supervisor of the business of the agent or deceased agent referred to in the order; and (b) may authorise the supervisor to obtain an advance from the Treasurer, which the Treasurer is hereby authorised to make on such terms and conditions as the Treasurer thinks fit, for the purpose of carrying on the business of the agent or deceased agent; and (c) may determine what, if any, proportion of remuneration or other proper charges recovered on account of the agent or deceased agent, shall be paid to the agent or the personal representative of the deceased agent and what proportion shall be paid to the Commissioner towards the expenses and remuneration of the supervisor and for reimbursement of advances made under paragraph (b). (2) An appointment of a supervisor shall be in writing. [Section 94 amended: No. 58 of 2010 s. 101 and 134.] ##### 95. Supervisors’ duties (1) The supervisor shall carry on the business for the purpose of concluding or disposing of matters commenced but not concluded on behalf of clients of the business and, where necessary, for the purpose of disposing of, or dealing with, documents relevant to those matters, and, in the case of the business of a deceased agent, shall carry on the business until it can otherwise be dealt with according to law. (2) The supervisor may, on production of his instrument of appointment — (a) by notice in writing require the agent to whom the appointment relates, or any of his clerks, servants, or agents, or in the case of a deceased agent, his personal representative or any of the former clerks, servants, or agents of the deceased agent to produce to the supervisor any books, files, papers, or documents relating to the practice that, in the opinion of the supervisor, may be reasonably necessary for the purposes of carrying on the business; and (b) enter upon any premises of the agent to whom the appointment relates, or, in the case of a deceased agent, his former premises, and take possession of all books, files, papers, documents, and other things relating to the business, and that, in the opinion of the supervisor, may be relevant to or necessary for the carrying on of the business. ##### 96. Hindering etc. supervisors, offence A person who, being required to do anything by a supervisor pursuant to the powers conferred on the supervisor by this Act, without lawful excuse of which the proof lies on him, refuses or fails to do the thing required or who hinders or obstructs the supervisor in the exercise of his powers or hinders or obstructs the supervisor, or any person employed by him, in the performance of his duties commits an offence. Penalty: $4 000. [Section 96 amended: No. 43 of 1994 s. 11.] ##### 97. Discharge or variation of s. 92 or 93 order An agent or the personal representative of a deceased agent, whose account is the subject of an order made under the provisions of section 92 or 93 may apply to the State Administrative Tribunal to discharge or vary the order and to award such costs upon the application as it thinks fit and the State Administrative Tribunal is hereby empowered to discharge or vary the order and to make such further order as it thinks fit. [Section 97 amended: No. 55 of 2004 s. 1021.] ##### 98. SAT’s additional powers as to s. 92, 93 and 97 orders; schemes for distributing funds (1) The State Administrative Tribunal may, on the application of the Commissioner, the Treasurer, or the agent, or the personal representative of a deceased agent, referred to in an order made under the provisions of section 92, 93, or 97 make further orders — (a) discharging or varying any order so made; and (b) directing that any moneys in any account affected by an order so made shall be paid to the Treasurer by the bank or other body on such terms and conditions as the State Administrative Tribunal thinks fit. (2) The Treasurer, on receiving moneys paid pursuant to an order made under subsection (1)(b) — (a) shall cause the moneys to be credited to a separate Treasurer’s special purpose account established under section 10 of the *Financial Management Act 2006*; and (b) may prepare a scheme for distributing the moneys as compensation to each person who claims compensation at any time within 6 months after the Treasurer receives the money, and proves to the satisfaction of the Treasurer that the person has, in respect of any transaction or prospective transaction, sustained loss through any act or omission of the agent, or deceased agent or his personal representative, in respect of whose accounts the order was made; and (c) may, if the moneys are not sufficient to pay all proved claims, apportion the moneys among claimants in proportion to their proved claims and show in the scheme for distribution how the moneys are so apportioned. (3) Where the Treasurer prepares a scheme for distribution he shall apply to the State Administrative Tribunal for approval of the scheme and for directions in respect thereof. (4) The State Administrative Tribunal may give such directions in respect of the separate Treasurer’s special purpose account, the moneys standing to the credit of the account, the persons to whom and in what amounts the whole or any portion of the moneys standing to the credit of the account shall be paid by the Treasurer, and as to the payment of the balance of the moneys then standing to the credit of the account, if any, as it thinks fit. [Section 98 amended: No. 59 of 1995 s. 40(1) and 42; No. 26 of 1999 s. 99(5); No. 55 of 2004 s. 1021; No. 77 of 2006 Sch. 1 cl. 147(6) and (7); No. 58 of 2010 s. 134.] ##### 99. Service of s. 92, 93, 97 or 98 orders; penalty for breach of (1) The Commissioner shall, as soon as practicable after any order is, on the application of the Commissioner, made under the provisions of section 92, 93, or 98 serve or cause to be served a copy of the order — (a) on the manager or other officer for the time being in charge of the office of the bank or other body in which any account referred to in the order is kept; and (b) on the agent or the personal representative of a deceased agent in whose name the account is kept; and (c) where it is an order under section 98(1)(b) on the Treasurer. (2) An agent, or the personal representative of a deceased agent, shall, as soon as practicable after any order is, on his application, made under the provisions of section 97 or 98 serve or cause to be served a copy of the order — (a) on the manager or other officer for the time being in charge of the office of the bank or other body in which any account referred to in the order is kept; and (b) on the Commissioner; and (c) where it is an order under section 98(1)(b) on the Treasurer. (3) The Treasurer shall, as soon as practicable after any order is, on his application, made under the provisions of section 98 serve or cause to be served a copy of the order — (a) on the manager or other officer for the time being in charge of the office of the bank or other body in which any account referred to in the order is kept; and (b) on the agent, or the personal representative of a deceased agent, in whose name the account is kept; and (c) on the Commissioner. (4) Every person on whom an order is served shall comply with the order and shall permit others affected thereby to do so. (5) A person, in addition to any other penalty or liability he may incur in failing to comply with the order or failing to permit others affected thereby to do so, who omits to do that which he is required under the order to do, or does that which he is prohibited under the order from doing, commits an offence against this Act. Penalty: $4 000. (6) This section is sufficient authority and indemnity for complying with an order so made and served. [Section 99 amended: No. 43 of 1994 s. 11; No. 59 of 1995 s. 40(1); No. 26 of 1999 s. 99(6)‑(8); No. 58 of 2010 s. 134.] ##### 100. Banks etc., duty to disclose certain accounts etc. if required to by authorised person Where a person duly authorised under the *Fair Trading Act 2010* Part 6 to make an investigation or inquiry for the purposes of that Act, or this Act, has reasonable cause to believe that an agent has deposited any money with a bank or other financial institution, whether in an account in the name of the agent or in some other account, he or she may by notice in writing addressed to the manager or other officer for the time being in charge of the bank or other institution concerned and nominating the accounts to be examined, require that those accounts be disclosed to him or her, and the manager or other officer for the time being in charge of the bank or other institution named in the requisition shall without requiring any warrant other than the production of the credentials under the *Fair Trading Act 2010* of that authorised person, whether or not the person in whose name the account is held consents, permit the authorised person to inspect, and make a copy or extract of, the nominated accounts and any book, document or other record that relates to the accounts and is in the possession or control of that bank or other institution. [Section 100 inserted: No. 58 of 2010 s. 102.] ##### 100A. Information about trust accounts, Commissioner’s power to obtain (1) The Commissioner may require — (a) an agent to give the Commissioner such information as the Commissioner requires in relation to trust accounts maintained or formerly maintained by that agent; or (b) the manager or other officer for the time being in charge of an authorised financial institution to give the Commissioner such information as the Commissioner requires in relation to trust accounts maintained or formerly maintained with that institution, including, without limiting this subsection, information as to the balances of and amounts of interest paid on such accounts. (2) A requirement under subsection (1) — (a) shall be given by notice in writing to the person required to give the information; and (b) shall specify the time at or within which the information is to be given; and (c) may, by its terms, require that the information be — (i) given in writing; and (ii) certified as correct by a person who is registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the *Corporations Act 2001* of the Commonwealth and is specified in the requirement; and (iii) given at or sent or delivered to any place specified in the requirement; and (iv) sent or delivered by any means specified in the requirement; and (v) given on oath or affirmation or by statutory declaration; and (d) shall state that the person to whom the notice is given is required under this Act to give the information. (3) A person shall not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1). Penalty: $3 000. [(4) deleted] (5) It is a defence in proceedings for an offence against subsection (3) for the person to show that — (a) the notice under subsection (2)(a) did not state that the person was required under this Act to give the information; or (b) the time specified in the requirement did not give the person sufficient notice to enable compliance with the requirement. (6) Where a person is required to give information under subsection (1), the person shall not refuse to comply with that requirement on the ground that the information may tend to incriminate the person or render the person liable to any penalty. (7) Despite subsection (6), information given under this section is not admissible in evidence in any proceedings against the person other than proceedings in respect of an offence against section 134A. (8) The power conferred by subsection (1) is in addition to any other powers of the Commissioner under this Act. [Section 100A inserted: No. 59 of 1995 s. 19; amended: No. 10 of 2001 s. 220; No. 58 of 2010 s. 134; No. 25 of 2019 s. 54.] ## Part VII — Discipline of agents and sales representatives ##### 101. Codes of conduct The Commissioner may from time to time prescribe, and publish in the manner prescribed by the regulations — (a) a code of conduct for agents; and (b) a code of conduct for sales representatives. [Section 101 amended: No. 58 of 2010 s. 134.] ##### 102. Disciplinary action by SAT, alleging cause for (1) The Commissioner may allege to the State Administrative Tribunal that — (a) there is proper cause for disciplinary action, as mentioned in section 103(2), against an agent; or (b) there is proper cause for disciplinary action, as mentioned in section 103(4), against a sales representative. [(2)‑(5) deleted] (6) Notwithstanding the expiry of the certificate of registration of a sales representative, an allegation under subsection (1) in respect of a sales representative may be made to the State Administrative Tribunal not later than 12 months after the day on which his certificate of registration expired and, upon consideration of the allegation, the State Administrative Tribunal may exercise the powers conferred by section 103, other than the powers of suspension or cancellation of registration. (7) Despite the surrender by a person of a licence or triennial certificate or a licensee ceasing to be licensed or to hold a triennial certificate — (a) an allegation under subsection (1)(a) in respect of an agent may be made to the State Administrative Tribunal not later than 12 months after the day on which the licence or certificate was surrendered or the licensee ceased to be licensed or ceased holding the certificate; and (b) the State Administrative Tribunal may exercise the powers conferred by section 103, other than the power to suspend or cancel the agent’s licence or certificate. [Section 102 amended: No. 74 of 1980 s. 10; No. 34 of 1998 s. 16; No. 55 of 2004 s. 1013 and 1020; No. 58 of 2010 s. 134; No. 25 of 2019 s. 55.] ##### 103. Disciplinary action, SAT’s powers as to (1) If, in a proceeding commenced by an allegation under section 102(1) against an agent, the State Administrative Tribunal is satisfied that proper cause exists for disciplinary action, the State Administrative Tribunal may do any one or more of the following things — (a) reprimand or caution the agent; (b) impose a fine not exceeding $10 000 on him; (c) suspend or cancel his licence and any triennial certificate in respect thereof and in addition, disqualify him either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the State Administrative Tribunal, from holding a licence or triennial certificate, or both; (d) where the State Administrative Tribunal is satisfied that the agent is acting or has acted in breach of section 60(3), 61(5) or 64(4) (the subsection) — (i) order the agent to pay to a person specified by the State Administrative Tribunal the whole or part of any commission, reward or other valuable consideration received or held in contravention of a provision referred to in the subsection; (ii) order that a demand by the agent in contravention of a provision referred to in the subsection for the whole or part of any commission, reward or other valuable consideration not be made, or if made, be withdrawn or varied in accordance with the order; (e) where the State Administrative Tribunal is satisfied that the agent is acting or has acted in breach of section 64(1), order the agent to pay to the agent’s principal any profit that the agent has made, or is, in the opinion of the State Administrative Tribunal, likely to make from the transaction. (2) There shall be proper cause for disciplinary action against an agent if — (a) the agent improperly obtained a licence or triennial certificate; or (b) the agent, or any person acting with the authority or upon the instructions of the agent has in the course of any dealings with a party, or a prospective party, to a transaction, been guilty of conduct that constitutes a breach of any law other than this Act and that prejudices or may prejudice any rights or interests of the party, or prospective party to the transaction; or (c) the agent is acting or has acted in breach of — (i) a special condition of his licence or triennial certificate; or (ii) the requirements of this Act; or (iii) the code of conduct for agents; or (d) any other cause exists that, in the opinion of the State Administrative Tribunal, renders the agent unfit to hold a licence. (3) If, in a proceeding commenced by an allegation under section 102(1) against a sales representative, the State Administrative Tribunal is satisfied that proper cause exists for disciplinary action, the State Administrative Tribunal may do any one or more of the following things — (a) reprimand or caution the sales representative; (b) impose a fine not exceeding $3 000 on him; (c) suspend or cancel his registration and, in addition, disqualify him either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the State Administrative Tribunal, from being registered; (d) where the State Administrative Tribunal is satisfied that the sales representative is acting or has acted in breach of section 64(2), order the sales representative to pay to the agent’s principal any profit that the sales representative has made, or is, in the opinion of the State Administrative Tribunal, likely to make from the transaction. (4) There shall be proper cause for disciplinary action against a sales representative if — (a) the sales representative improperly obtained registration; or (b) the sales representative, or any person acting with the authority or on the instructions of the sales representative has, in the course of any dealings with a party, or a prospective party, to a transaction, been guilty of conduct that constitutes a breach of any law other than this Act and prejudices or may prejudice any rights or interest of the party, or prospective party, to the transaction; or (c) the sales representative is acting or has acted in breach of — (i) a special condition of his registration; or (ii) the requirements of this Act; or (iii) the code of conduct for sales representatives; or (d) any other cause exists that, in the opinion of the State Administrative Tribunal, renders the sales representative unfit to hold a certificate of registration. (5) Where the State Administrative Tribunal suspends or cancels a licence or a triennial certificate, or both, or suspends or cancels the registration of a sales representative — [(a) deleted] (b) the licence, triennial certificate, or certificate of registration, as the case requires shall be immediately delivered to the Commissioner by the agent or sales representative, as the case requires. (6) No penalty provided for elsewhere in this Act in relation to the conduct of an agent or a sales representative is to be taken to limit the powers exercisable by the State Administrative Tribunal under subsections (1) and (3). [Section 103 amended: No. 43 of 1994 s. 11; No. 59 of 1995 s. 20; No. 34 of 1998 s. 17; No. 55 of 2004 s. 1014 and 1020; No. 58 of 2010 s. 134; No. 25 of 2019 s. 56.] ##### 104. Offences that cause licence and triennial certificate to be cancelled If a licensee is convicted of an offence involving — (a) defalcation by the licensee; or (b) the fraudulent rendering of an account, knowing it to be false in any material particular, in respect of money or other property entrusted to him by or on behalf of another person in the course of the licensee’s business; or (c) a breach of any one or more of the provisions of Part VI relating to the proper payment in and out of the trust account of the licensee of money entrusted to him by or on behalf of another person in the course of the licensee’s business, his licence and any triennial certificate in respect thereof is thereby cancelled, and the registrar of the court convicting him shall forthwith notify the Commissioner accordingly. [Section 104 amended: No. 59 of 2004 s. 141; No. 58 of 2010 s. 134.] ##### 105. Certain offences by licensees, additional sentencing powers for (1) Where a licensee who has been convicted of any other offence against this Act is within 12 months thereafter convicted of a second or any subsequent offence of any kind against this Act, or where a licensee is convicted, whether summarily or on indictment of an offence involving moral turpitude, or dishonouring him in the public estimation, the court convicting him may, if it thinks fit, in addition to any other penalty, do any one or more of the following things — (a) reprimand or caution the licensee; (b) impose a fine not exceeding $10 000 on him; (c) suspend or cancel his licence or any triennial certificate in respect thereof and, in addition, disqualify him either temporarily or permanently, or until the fulfilment of any conditions which may be imposed by the court or until further order of the court, from holding a licence or triennial certificate or both, and when the court does so, the registrar of the court shall forthwith notify the Commissioner accordingly. (2) The disciplinary powers conferred on a court by subsection (1) are concurrent with the disciplinary powers conferred on the State Administrative Tribunal by this Part, but those respective powers shall not both be exercised in respect of particulars of an offence or offences of the licensee that are substantially the same. [Section 105 amended: No. 43 of 1994 s. 11; No. 55 of 2004 s. 1020; No. 59 of 2004 s. 141; No. 58 of 2010 s. 134.] ##### 105A. Cancellation of licence due to insufficient resources or cessation of business The State Administrative Tribunal may, on application by the Commissioner, cancel a licence if the Tribunal is satisfied that the licensee — (a) does not have sufficient material and financial resources available to enable them to comply with the requirements of this Act; or (b) has ceased to carry on the business to which the licence relates. [Section 105A inserted: No. 7 of 2022 s. 47.] ##### 106. Persons with cancelled licences etc., offences by and in respect of (1) A person who — (a) has had his licence cancelled under this Act; or (b) has had his certificate of registration cancelled under this Act on at least 2 occasions; or (c) has been convicted of an offence against this Act on at least 2 occasions, commits an offence against this Act, if, without the written permission of the Commissioner, he becomes or remains a director of any body corporate that is a licensee or a developer, or he is the employer, employee, or partner of a licensee or a developer, as such. Penalty: $10 000. (2) If a licensee or a developer in his business as such knowingly has, without the written permission of the Commissioner, as an employee or a partner, or being a body corporate has as a director, a person who — (a) has had his licence cancelled under this Act; or (b) has had his certificate of registration cancelled under this Act on at least 2 occasions; or (c) has been convicted of an offence against this Act on at least 2 occasions, the licensee or developer, as the case may be, commits an offence against this Act. Penalty: $5 000. (3) For the purposes of this section, a person is deemed to be an employee of another person if he receives remuneration from the other person by way of commission or a share of profits. [Section 106 amended: No. 43 of 1994 s. 11; No. 58 of 2010 s. 134.] ## Part VIII — Fidelity Guarantee Account [Heading amended: No. 77 of 2006 Sch. 1 cl. 147(8).] ##### 107. Account established An account called the Real Estate and Business Agents Fidelity Guarantee Account is to be established — (a) as an agency special purpose account under section 16 of the *Financial Management Act 2006*; or (b) with the approval of the Treasurer, at a bank as defined in section 3 of that Act. [Section 107 inserted: No. 77 of 2006 Sch. 1 cl. 147(9).] ##### 108. Investment of moneys in account (1) Moneys standing to the credit of the Fidelity Account may, until required for the purposes of section 110, be invested in the same manner as trust funds may be invested in accordance with Part III of the *Trustees Act 1962*. (2) Income derived from any such investment is to be credited to the Fidelity Account. [Section 108 inserted: No. 59 of 1995 s. 22; amended: No. 77 of 2006 Sch. 1 cl. 147(2) and (10).] ##### 109. Moneys to be credited to account There shall be credited to the Fidelity Account — (a) all sums paid to the credit of the Fidelity Account by agents and sales representatives by way of contribution or levy, in accordance with this Act; and (b) income derived from the investment, under section 108, of moneys standing to the credit of the Fidelity Account; and (c) all moneys transferred to the Fidelity Account under section 127(b); and (d) all money recovered by or on behalf of the State for the benefit of the Fidelity Account in the exercise of any right of action conferred by this Act or the *Fair Trading Act 2010*; and (e) any other money that may be lawfully credited to the Fidelity Account. [Section 109 amended: No. 29 of 1982 s. 5 and 12; No. 59 of 1995 s. 23 and 42; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 103.] ##### 110. Expenditure from account There shall from time to time be charged to the Fidelity Account, as required — (a) the amount of all claims, including costs, allowed or established against the Fidelity Account; and (b) all legal expenses incurred in defending claims made against the Fidelity Account, or otherwise incurred in relation to the Fidelity Account; and (c) all premiums payable in respect of contracts of insurance entered into by the chief executive officer on behalf of the State under section 121; and (d) the expenses involved in the administration of the Fidelity Account; and (e) the cost of any audit that may be charged to the Fidelity Account pursuant to Part VI; and [(f) deleted] (g) any other money chargeable to the Fidelity Account in accordance with this Act. [Section 110 amended: No. 29 of 1982 s. 12; No. 59 of 1995 s. 24 and 42; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 104.] [**111.** Deleted: No. 98 of 1985 s. 3.] ##### 112. Administration of account The Fidelity Account shall be administered by the chief executive officer. [Section 112 amended: No. 29 of 1982 s. 12; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 105.] ##### 113. Payments to account by applicants for licences etc. (1) Each agent, on making application in any year for a licence or the renewal of a triennial certificate shall, in addition to all other fees payable in respect thereof, pay to the chief executive officer a sum of $150 or such other sum as the chief executive officer approves, but limited to an increase in any one year of 6.7%, and no such licence or renewal of a triennial certificate shall be issued until the appropriate payment has been made to the chief executive officer. (2) Each sales representative, on making application for a certificate of registration or a renewal thereof, shall in addition to all other fees payable in respect thereof, pay to the chief executive officer a sum of $45 or such other sum as the chief executive officer approves, but limited to an increase in any one year of 20%, and no such certificate of registration or renewal thereof shall be issued until the appropriate payment has been made to the chief executive officer. (3) The amounts paid to the chief executive officer under this section shall forthwith be credited by the chief executive officer to the Fidelity Account. [Section 113 amended: No. 29 of 1982 s. 12; No. 56 of 1995 s. 46; No. 59 of 1995 s. 42; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 106.] ##### 114. Cap on payments under s. 113 No agent or sales representative who has contributed to the Fidelity Account a sum of $150 or $45 respectively, and in respect of whom no claim has been made or sustained against the Fidelity Account, is liable to pay any further contribution under section 113 at any time while the amount standing to the credit of the Fidelity Account, including any investments thereof, and after deducting the amount of all unpaid claims and other liabilities outstanding against the Fidelity Account, exceeds $1 000 000, or such other amount as is prescribed. [Section 114 amended: No. 74 of 1980 s. 11; No. 29 of 1982 s. 12; No. 59 of 1995 s. 42; No. 77 of 2006 Sch. 1 cl. 147(2).] ##### 115. Levies for account against certificate holders (1) If at any time the Fidelity Account is, in the opinion of the chief executive officer, not sufficient to satisfy the liabilities of the chief executive officer in relation thereto, the chief executive officer may impose on each holder of a current triennial certificate and each holder of a current certificate of registration, to be credited to the Fidelity Account, a levy of such amount as the chief executive officer thinks fit not exceeding the relevant amount referred to in subsection (2). (2) The amount of the levy shall not exceed — (a) in the case of a holder of a current triennial certificate, the sum of $20 in any one year; (b) in the case of a holder of a current certificate of registration, the sum of $10 in any one year. (3) The amount of the levy shall become payable on a date and in a manner to be fixed by the chief executive officer, and notice thereof shall be sent by the chief executive officer to each holder of a current triennial certificate and each holder of a current certificate of registration. (4) A person who fails to comply with any notice sent to him under subsection (3) is guilty of an offence against this Act. [Section 115 amended: No. 29 of 1982 s. 7; No. 77 of 1984 s. 3; No. 59 of 1995 s. 42; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 107.] ##### 116. Purpose of account; making claims against account (1) The Fidelity Account is to be held and applied to reimburse a person for the person’s pecuniary or property loss to the extent of the defalcation of — (a) a licensee during any period when the licensee was the holder of a current triennial certificate; or (b) a person who ceased to be licensed or to hold a triennial certificate, if — (i) the defalcation occurred during the period of 6 months immediately following the day on which the person ceased to be licensed or the holder of the triennial certificate; and (ii) the chief executive officer considers that it is just and reasonable in the circumstances of the claim. [(2A) deleted] (2) The chief executive officer is to disallow a claim against the Fidelity Account unless — (a) notice of the claim is given in writing to the chief executive officer within 3 years after the day on which the claimant became aware of the defalcation; or (b) the chief executive officer — (i) has been given notice in writing of the claim within 6 years after the day on which the claimant became aware of the defalcation; and (ii) considers that it is just and reasonable in the circumstances to deal with the claim even though notice was not given within the time referred to in paragraph (a). [Section 116 amended: No. 29 of 1982 s. 12; No. 3 of 2000 s. 4(1); No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 108; No. 23 of 2014 s. 76; No. 25 of 2019 s. 57.] ##### 117. Claims against account; recovery from account (1) The chief executive officer may receive and, subject to section 116(2), settle any claim against the Fidelity Account at any time after the defalcation in respect of which the claim arose has occurred, but no person is entitled, without the leave of the chief executive officer, to commence any action in relation to the Fidelity Account, unless the chief executive officer has disallowed his claim and unless and until the claimant has exhausted all relevant rights of action and other legal remedies available against the defaulting licensee or any other person in respect of the loss suffered by the claimant. (2) A person is not entitled to recover from the Fidelity Account an amount greater than the balance of the loss suffered by him after deducting from the total amount of his loss, the amount or value of all money or other benefits received or receivable by him from any source other than the Fidelity Account in reduction of his loss, including any benefits received by reason of services rendered or payments made by the defaulting licensee. (3) No amount shall be charged or be chargeable to the Fidelity Account as interest on the amount of any judgment obtained or of any claim admitted against the Fidelity Account. (4) No right of action lies in relation to the Fidelity Account in respect of any loss suffered by any person by reason of any defalcation by a licensee at any time after the claimant has received a notice in writing from the chief executive officer warning him against the employment or continued employment of that licensee which notice the chief executive officer is hereby empowered to send. (5) No right of action lies in relation to the Fidelity Account in respect of any loss suffered by the spouse or de facto partner of a licensee by reason of any defalcation by that licensee, or in respect of any loss suffered by any licensee by reason of any defalcation in the course of the licensee’s business by any one or more of the persons in the class of persons specified in the interpretation ***defalcation by a licensee*** in section 4. [Section 117 amended: No. 29 of 1982 s. 12; No. 59 of 1995 s. 42; No. 3 of 2000 s. 5; No. 28 of 2003 s. 176; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 109.] ##### 118. Defences to claims against account In any action brought against the State in relation to the Fidelity Account, all defences that would have been available to the defaulting licensee are available to the State. [Section 118 amended: No. 28 of 1982 s. 12; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 110.] ##### 119. Subrogation of rights of claimant against account On payment from moneys standing to the credit of the Fidelity Account in settlement in whole or in part of any claims under this Act, the State shall be subrogated, to the extent of that payment, to all rights and remedies of the claimant against the licensee in relation to whom the claim arose or in the event of the death or insolvency or other disability of the licensee, against his personal representatives or other persons having authority to administer his estate, and to all other rights and remedies of the claimant in respect of the defalcation to which the claim relates. [Section 119 amended: No. 59 of 1995 s. 42; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 111.] ##### 120. Insufficiency in account (1) The moneys standing to the credit of the Fidelity Account are the only property of the chief executive officer available for the satisfaction of any judgment obtained against the State in relation to the Fidelity Account, or for the payment of any claim allowed by the chief executive officer; but if at any time the moneys standing to the credit of the Fidelity Account are not sufficient to provide for the satisfaction of all such judgments and claims they shall, to the extent to which they are not so satisfied, be charged against the future accumulations of the Fidelity Account. (2) The chief executive officer may determine the order in which the judgments and claims charged against the Fidelity Account as provided in subsection (1) shall be satisfied, and may, if the amount accumulated is not sufficient to wholly satisfy all those judgments and claims, satisfy any of those judgments or claims in whole or in part. (3) Without limiting the discretion of the chief executive officer, the chief executive officer shall in applying the Fidelity Account towards the settlement of any of the judgments and claims referred to in subsection (2), have regard to the following rules — (a) the chief executive officer shall take into consideration the relative degrees of hardship suffered or likely to be suffered by the several claimants in the events of their claims against the Fidelity Account not being satisfied in whole or in part; (b) claims for amounts not exceeding $2 500 shall, except in special circumstances, be satisfied in full before claims for amounts exceeding $2 500 are satisfied to a greater extent than $2 500; (c) where all other considerations are equal, claimants shall have the priority as between themselves, according to the dates of the judgments or the dates when the claims were admitted by the chief executive officer, as the case may be. [Section 120 amended: No. 28 of 1982 s. 12; No. 59 of 1995 s. 25 and 42; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 112.] ##### 121. State may insure against claims (1) Notwithstanding anything to the contrary in this Act, the chief executive officer may, on behalf of the State, enter into any contract of insurance with any person carrying on fidelity insurance business in the State, by which the State will be indemnified to the extent and in the manner provided by the contract against liability to pay claims under this Act. (2) Any such contract may be entered into in relation to licensees generally who are holders of current triennial certificates or sales representatives generally who are the holders of current certificates of registration or in relation to any licensee who is the holder of a current triennial certificate or any sales representative who is the holder of a current certificate of registration. (3) The chief executive officer may publish the fact that a policy has been effected under this section and of the details of the policy. [Section 121 amended: No. 51 of 1986 s. 46(2); No. 58 of 2010 s. 113.] ##### 122. Application of insurance payouts A claimant against the Fidelity Account has no right of action against any person with whom a contract of insurance is made under section 121 in respect of that contract, and has no right to claim any money paid by the insurer in accordance with any such contract; but all such money shall be credited to the Fidelity Account and shall be applied in or towards the settlement of relevant claims. [Section 122 amended: No. 29 of 1982 s. 12; No. 59 of 1995 s. 42; No. 77 of 2006 Sch. 1 cl. 147(2).] ##### 123. Advertising for claims in relation to defaulting licensee (1) The chief executive officer may cause to be published a notice in a newspaper circulating in the district in which the defaulting licensee is or was carrying on business as an agent, and the notice shall fix a date not being earlier than 3 months after the publication of the notice, within which claims shall be made. (2) Any claim not made in writing to the chief executive officer on or before the date so fixed is barred unless the chief executive officer otherwise determines. (3) After the date so fixed the chief executive officer is at liberty to distribute in accordance with this Act, the sum from time to time available to be applied in reimbursement under sections 116 and 117, having regard only to judgments and claims allowed against the Fidelity Account. [Section 123 amended: No. 29 of 1982 s. 12; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 114.] ##### 124. Documents etc. to support claims, CEO may require The chief executive officer may at any time and from time to time require production and delivery to the chief executive officer of securities and documents necessary to support any claim made, or available for that purpose, or for the purpose of exercising the State’s rights against any defaulting licensee and may on default of delivery of those securities or documents reject the claim. [Section 124 amended: No. 58 of 2010 s. 115.] ##### 124AA. Commissioner may investigate claims against Fidelity Account (1) Without limiting section 22, the Commissioner may, at and in accordance with the request of the chief executive officer, make an investigation or inquiry under the *Fair Trading Act 2010* Part 6 in relation to a claim against the Fidelity Account. (2) For the purposes of the investigation or inquiry, the administration of the Fidelity Account is taken to be a function of the Commissioner. (3) The Commissioner must, as soon as practicable after completing the investigation or inquiry, prepare a report on the findings of the investigation or inquiry and give it to the chief executive officer. [Section 124AA inserted: No. 23 of 2014 s. 77.] ## Part VIIIA — Education and General Purpose Account [Heading inserted: No. 59 of 1995 s. 26; amended: No. 77 of 2006 Sch. 1 cl. 147(11).] ##### 124A. Account established; administration of account (1) An account called the Education and General Purpose Account is to be established — (a) as an agency special purpose account under section 16 of the *Financial Management Act 2006*; or (b) with the approval of the Treasurer, at a bank as defined in section 3 of that Act. (2) The General Purpose Account is to be administered by the chief executive officer. [Section 124A inserted: No. 59 of 1995 s. 26; amended: No. 77 of 2006 Sch. 1 cl. 147(2) and (12); No. 58 of 2010 s. 134; No. 23 of 2014 s. 78.] ##### 124B. Moneys to be credited to account There are to be credited to the General Purpose Account — (a) all moneys transferred to the General Purpose Account under section 127(b); and (b) income derived from the investment, under section 124D, of moneys standing to the credit of the General Purpose Account; and (c) fees, costs and other moneys lawfully received by or payable to the Commissioner; and (d) fines imposed under section 105; and (e) fines, other than those imposed by the State Administrative Tribunal, that are imposed for offences under this Act; and (f) any moneys, other than moneys referred to in paragraphs (a), (b), (c), (d) and (e), that may lawfully be credited to the General Purpose Account. [Section 124B inserted: No. 59 of 1995 s. 26; amended: No. 55 of 2004 s. 1015; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 134.] ##### 124C. Expenditure from account There are to be charged to the General Purpose Account — (a) the costs incurred in the administration of the General Purpose Account; and (b) the remuneration and allowances payable to members of advisory committees established under Part II Division 4 of this Act or under the *Fair Trading Act 2010* Part 5 Division 2 Subdivision 1; and (c) the costs associated with the provision of secretarial, clerical or other administrative support to the advisory committees in the performance of their functions under this Act or under the *Fair Trading Act 2010* Part 5 Division 2 Subdivision 1; and (d) the costs incurred in, or in connection with, the administration and enforcement of this Act except such costs, if any, as are excluded by the regulations; and (e) all other expenditure lawfully incurred by the Commissioner in the performance of the Commissioner’s functions under this Act or the Commissioner’s functions under the *Fair Trading Act 2010* section 57A that are performed for the purposes of this Act. [Section 124C inserted: No. 59 of 1995 s. 26; amended: No. 34 of 1998 s. 18; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 116; No. 23 of 2014 s. 79.] ##### 124D. Investment of moneys in account (1) Moneys standing to the credit of the General Purpose Account may, until required for the purposes of section 124C, be invested in the same manner as trust funds may be invested in accordance with Part III of the *Trustees Act 1962*. (2) Income derived from any such investment is to be credited to the General Purpose Account. [Section 124D inserted: No. 59 of 1995 s. 26; amended: No. 77 of 2006 Sch. 1 cl. 147(2) and (13).] ## Part IX — Real Estate and Business Agents Interest Account [Heading inserted: No. 59 of 1995 s. 27; amended: No. 58 of 2010 s. 117.] ##### 125. Account established; administration of account (1) An account called the Real Estate and Business Agents Interest Account is to be established — (a) as an agency special purpose account under section 16 of the *Financial Management Act 2006*; or (b) with the approval of the Treasurer, at a bank as defined in section 3 of that Act. (2) The Interest Account is to be administered by the chief executive officer. [Section 125 inserted: No. 59 of 1995 s. 27; amended: No. 77 of 2006 Sch. 1 cl. 147(14); No. 58 of 2010 s. 118; No. 47 of 2011 s. 25(4).] ##### 126. Moneys to be credited to account There are to be credited to the Interest Account — (a) all moneys paid to the credit of the Interest Account under section 68B; and (b) income derived from the investment, under section 128, of moneys standing to the credit of the Interest Account; and (c) any moneys, other than moneys referred to in paragraphs (a) and (b), that may lawfully be credited to the Interest Account. [Section 126 inserted: No. 59 of 1995 s. 27; amended: No. 47 of 2011 s. 25(4).] ##### 127. Expenditure from account Moneys standing to the credit of the Interest Account are to be applied at such times as are prescribed — (a) first, in payment of the costs involved in administering the Interest Account; and (b) as to the balance remaining after payment under paragraph (a), by transfer in equal shares or such other proportions as are prescribed to the credit of — (i) the Fidelity Account; and (ii) the General Purpose Account; and (iii) the Assistance Account. [Section 127 inserted: No. 59 of 1995 s. 27; amended: No. 77 of 2006 Sch. 1 cl. 147(2); No. 47 of 2011 s. 25(4).] ##### 128. Investment of moneys in account (1) Moneys standing to the credit of the Interest Account may, until required for the purposes of section 127, be invested in the same manner as trust funds may be invested in accordance with Part III of the *Trustees Act 1962*. (2) Income derived from any such investment is to be credited to the Interest Account. [Section 128 inserted: No. 59 of 1995 s. 27; amended: No. 77 of 2006 Sch. 1 cl. 147(15); No. 47 of 2011 s. 25(4).] [**129, 130.** Deleted: No. 59 of 1995 s. 27.] [**131.** Deleted: No. 98 of 1985 s. 3.] ## Part IXA — Assistance to home buyers ##### 131A. Terms used In this Part, unless the contrary intention appears — applicant means person on whose behalf an application has been lodged under section 131L(1); assisted person means applicant to whom a grant has been made under section 131M(3); dwelling includes — (aa) a lot within the meaning of the *Community Titles Act 2018*; and (a) a lot within the meaning of the *Strata Titles Act 1985*; and (b) except in the case of a dwelling which is a lot referred to in paragraph (aa) or (a), land on which the dwelling concerned is erected or is being erected, as the case requires; incidental expenses, in relation to a purchase, or purchase and completion, referred to in section 131L(1), includes — (a) duty chargeable under the *Duties Act 2008*; and (b) registration fees; and (c) the remuneration of a real estate settlement agent within the meaning of the *Settlement Agents Act 1981*; and (d) the costs of a legal practitioner; and (e) valuation fees; and (f) inspection fees; and (g) any fees payable to the lending institution lodging an application under section 131L(1) on behalf of the applicant concerned to assist him in that purchase or purchase and completion; and (h) any mortgage guarantee fee or mortgage insurance premium; lending institution means — (a) a bank; or [(b), (c) deleted] (d) a body that is prescribed, or that belongs to a class of bodies that is prescribed. [Section 131A inserted: No. 29 of 1982 s. 10; amended: No. 59 of 1995 s. 28; No. 26 of 1999 s. 99(10); No. 12 of 2001 s. 51; No. 65 of 2003 s. 59(3); No. 17 of 2005 s. 29(2); No. 12 of 2008 Sch. 1 cl. 32; No. 30 of 2018 s. 180; No. 32 of 2018 s. 235.] ##### 131B. Home Buyers Assistance Account established An account called the Home Buyers Assistance Account is to be established — (a) as an agency special purpose account under section 16 of the *Financial Management Act 2006*; or (b) with the approval of the Treasurer, at a bank as defined in section 3 of that Act. [Section 131B inserted: No. 77 of 2006 Sch. 1 cl. 147(16).] ##### 131C. Investment of moneys in account (1) Moneys standing to the credit of the Assistance Account may, until required for the purposes of section 131E, be invested in the same manner as trust funds may be invested in accordance with Part III of the *Trustees Act 1962*. (2) Income derived from any such investment is to be credited to the Assistance Account. [Section 131C inserted: No. 59 of 1995 s. 30; amended: No. 77 of 2006 Sch. 1 cl. 147(2) and (17).] ##### 131D. Moneys to be credited to account There shall be credited to the Assistance Account — (a) all moneys transferred to the Assistance Account under section 127(b); and (b) income derived from the investment, under section 131C, of moneys standing to the credit of the Assistance Account; and (c) all moneys recovered by or on behalf of the chief executive officer for the benefit of the Assistance Account in the exercise of any right of action conferred by this Act; and (d) any moneys, other than moneys referred to in paragraphs (a), (b) and (c), that may lawfully be credited to the Assistance Account. [Section 131D inserted: No. 29 of 1982 s. 10; amended: No. 59 of 1995 s. 31 and 42; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 119.] ##### 131E. Expenditure from account There shall from time to time be charged to the Assistance Account, as required — (a) the amounts of all grants made by the chief executive officer under section 131M(3); and (b) all legal expenses incurred in relation to the Assistance Account; and (c) the expenses involved in the administration of the Assistance Account; and (d) the remuneration and allowances payable to the member referred to in section 131H(2)(a); and (e) any moneys, other than moneys referred to in paragraphs (a), (b), (c) and (d), that may lawfully be charged to the Assistance Account under this Act. [Section 131E inserted: No. 29 of 1982 s. 10; amended: No. 59 of 1995 s. 32 and 42; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 120.] [**131F.** Deleted: No. 98 of 1985 s. 3.] ##### 131G. Administration of account The chief executive officer shall administer the Assistance Account. [Section 131G inserted: No. 29 of 1982 s. 10; amended: No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 121.] [**131H-131KA.** Deleted: No. 58 of 2010 s. 122.] ##### 131L. Applying for assistance for buyers of first homes (1AA) In this section — settlement has the meaning given in the *Settlement Agents Act 1981* section 3(1). (1) A lending institution which has made a loan to a person in order to assist the person to purchase through the agency of a licensed real estate agent carrying on business in the State — (a) the first dwelling to be owned by the person in the State; or (b) a partially erected dwelling, being the first dwelling to be owned by the person in the State, and to complete that dwelling, may, not later than 90 days after the date of settlement of the contract to purchase the dwelling, on behalf of the person lodge with the chief executive officer an application in the approved form for the granting to the person of the whole or any part of the amount of the incidental expenses incurred or to be incurred by the person in connection with a purchase or purchase and completion referred to in this subsection. (1a) Despite subsection (1), the chief executive officer may, in a particular case, allow an application to be lodged after the expiry of the period referred to in that subsection if the chief executive officer is satisfied that reasonable grounds exist to justify late lodgement of the application. (2) A reference in this section to a dwelling in relation to the making of a loan is a reference to a dwelling that is, or is intended to be, used by the person to whom the loan is made as a home for that person, whether alone or with another person or other persons. [Section 131L inserted: No. 29 of 1982 s. 10; amended: No. 43 of 1994 s. 7; No. 59 of 1995 s. 35 and 40(2); No. 58 of 2010 s. 123; No. 25 of 2019 s. 58.] ##### 131M. Deciding applications for assistance (1) On receiving an application lodged with him under section 131L, the chief executive officer shall, after satisfying himself that that application is in order, deal with the application, by — (a) considering the application and if, in the opinion of the chief executive officer, the application contains sufficient information to enable the merits of the application to be properly assessed, the chief executive officer may consider the application; or (b) referring the application to an advisory committee established for that purpose under section 23A, or to the Property Industry Advisory Committee, for consideration. (2) The relevant committee shall consider each application referred to it under subsection (1)(b) and, if in its opinion that application contains information sufficient to enable the chief executive officer properly to assess the merits of that application, return that application to the chief executive officer. (3) On considering an application under subsection (1)(a) or receiving an application and recommendation returned under subsection (2), the chief executive officer may, in accordance with the criteria formulated under section 131O(2) which were current at the date of the lodging of the application under section 131L(1) — (a) make a grant to the applicant of the whole or any part of the amount of the incidental expenses sought by that application up to a maximum amount of $1 000 or such other maximum amount as is prescribed; or (b) refuse that application. [Section 131M inserted: No. 29 of 1982 s. 10; amended: No. 43 of 1994 s. 8; No. 59 of 1995 s. 36; No. 58 of 2010 s. 124.] ##### 131N. Assistance, payment and application of (1) The chief executive officer shall, after he or she has made a grant under section 131M(3), pay the amount of the grant to the lending institution which lodged the relevant application out of moneys standing to the credit of the Assistance Account. (2) On receiving an amount paid to it under subsection (1), a lending institution shall hold that amount until the assisted person concerned is required to pay the incidental expenses to which that amount relates, whereupon the lending institution shall on behalf of that assisted person pay or distribute, as the case requires, that amount to or among the person or persons to whom those incidental expenses are payable. (3) Whenever the amount of a grant has been paid to a lending institution under subsection (1) and the assisted person to whom the grant has been made by the chief executive officer under section 131M(3) ceases for any reason to be required to pay — (a) the whole of the incidental expenses to which the grant relates, the lending institution shall repay to the chief executive officer the whole of the grant; or (b) any part of the incidental expenses to which the grant relates, the lending institution shall, if that part exceeds the amount, if any, by which the whole of those incidental expenses is greater than the amount of the grant, repay to the chief executive officer the amount of that excess. (4) If a lending institution is required by subsection (3) to repay an amount to the chief executive officer and the whole or part of that amount has been paid or distributed under subsection (2), the lending institution may by action in a court of competent jurisdiction recover that whole or part from the person or persons to or among whom that whole or part has been paid or distributed. [Section 131N inserted: No. 29 of 1982 s. 10; amended: No. 59 of 1995 s. 40(2); No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 125.] ##### 131O. Criteria for granting assistance, formulating (1) The Property Industry Advisory Committee may of its own motion or shall at the request of the chief executive officer, after consulting — [(a) deleted] (b) the person holding or acting in the office of the Chairman of the Commonwealth Banking Corporation chief executive officer constituted under the *Commonwealth Banks Act 1959* of the Parliament of the Commonwealth; and [(c)-(e) deleted] (f) such other persons as may be prescribed, make recommendations to the chief executive officer on the formulation of criteria under subsection (2). (2) The chief executive officer shall from time to time, with the approval of the Minister and after considering any recommendations made to it under subsection (1), formulate the criteria in accordance with which applications received by the chief executive officer under section 131M are to be decided. [Section 131O inserted: No. 29 of 1982 s. 10; amended: No. 6 of 1994 s. 13; No. 43 of 1994 s. 9; No. 14 of 1995 s. 44; No. 59 of 1995 s. 37; No. 12 of 2001 s. 50; No. 17 of 2005 s. 29(3); No. 58 of 2010 s. 126.] ## Part X — Miscellaneous ##### 132. Unlicensed assistants to be supervised etc. The work of unlicensed persons engaged in assisting in the conduct of the business of a licensee shall be constantly supervised and controlled by a licensee, and for that purpose — (a) where the licensee of the business involved is not a firm or a body corporate — (i) the licensee shall give substantial time and attention to the business and shall ensure that the managers of all branch offices of the business respectively give substantial time and attention to the business of the respective branch offices; and (ii) the manager of a branch office of the business shall give substantial time and attention to the business at that office; and (b) where the licensee of the business involved is a firm or a body corporate — (i) the partners of the firm or the directors of the body corporate, as the case requires, shall ensure that the person in *bona fide* control of the business gives substantial time and attention to the business; and (ii) the person in *bona fide* control of the business shall give substantial time and attention to the business; and (iii) the partners of the firm or the directors of the body corporate, as the case requires, and the person in *bona fide* control of the business shall ensure that the managers of all branch offices of the business respectively give substantial time and attention to the business of the respective branch offices; and (iv) the manager of a branch office of the business shall give substantial time and attention to the business at that office. ##### 133. Registers of licensees etc., Commissioner to keep etc. (1) The Commissioner shall keep the following registers — (a) a register of licensees; and (b) a register of holders of current triennial certificates; and (c) a register of holders of current certificates of registration. (2) The Commissioner shall record in the registers any prescribed particulars and shall record details of any change of those particulars notified under this Act. (3) The Commissioner shall cause to be removed from the relevant register or registers the name of every licensee or holder of a current triennial certificate or holder of a current certificate of registration who dies or ceases for any reason to be licensed or to hold a current triennial certificate or a current certificate of registration. (4) The Commissioner shall, upon receipt of the prescribed fee from a person desiring to inspect the registers, make them available for the inspection of that person. [Section 133 amended: No. 56 of 1995 s. 47; No. 58 of 2010 s. 134.] ##### 134A. Offence to give false or misleading information (1) A person who gives false or misleading information to the Commissioner or the chief executive officer under this Act commits an offence. Penalty for this subsection: a fine of $20 000. (2) For the purposes of subsection (1), a person gives false or misleading information to the Commissioner or the chief executive officer if the person does one or more of the following — (a) states anything that the person knows is false or misleading in a material particular; (b) omits anything from a statement without which the statement is, to the person’s knowledge, misleading in a material particular; (c) gives or produces any information that — (i) the person knows is false or misleading in a material particular; or (ii) omits anything without which the information is, to the person’s knowledge, misleading in a material particular. [Section 134A inserted: No. 44 of 2016 s. 35; amended: No. 25 of 2019 s. 59.] ##### 134. Commissioner’s certificate [(1), (2) deleted] (3) A certificate under the hand of the Commissioner that any person is or is not, or was or was not, licensed or the holder of a current triennial certificate or the holder of a current certificate of registration on the date of, or a date referred to, in the certificate, or as to any other matter contained in a register, shall, in the absence of proof to the contrary, be taken as proof of the matter so certified. (4) The Commissioner shall, upon receipt of a request in writing by any person, and payment of the prescribed fee, issue a certificate as to any of the contents of the register. [Section 134 amended: No. 58 of 2010 s. 134; No. 23 of 2014 s. 80.] ##### 135. Annual report by department [(1) deleted] (2) The department’s annual report is to include details of — (a) the number, nature, and outcome, of — (i) investigations and inquiries undertaken by, or at the direction of, the Commissioner; and (ii) matters that have been brought before the State Administrative Tribunal under this Act; and (iii) matters that have been dealt with through the conciliation process under this Act; and (b) the number and nature of matters referred to in paragraph (a) that are outstanding; and (c) any trends or special problems that may have emerged; and (d) forecasts of the workload of the Commissioner in the year after the year to which the report relates; and (e) any proposals for improving the operation of the Commissioner. [Section 135 inserted: No. 98 of 1985 s. 3; amended: No. 59 of 1995 s. 38; No. 55 of 2004 s. 1016; No. 77 of 2006 Sch. 1 cl. 147(18); No. 58 of 2010 s. 127.] ##### 136. Commissioner to report to Minister on Act’s effectiveness as to protecting against defalcations The Commissioner shall, from time to time, submit a report to the Minister as to the opinion of the Commissioner on — (a) the effectiveness or otherwise of current provisions for the purpose of providing protection to the public against any defalcations by a licensee; and (b) the desirability or otherwise of having further or alternative measures for that purpose, and where, in the opinion of the Commissioner, it is desirable to have such further or alternative measures, the Commissioner shall include in the report details of a scheme to implement those measures. [Section 136 amended: No. 58 of 2010 s. 134.] ##### 136A. Refunds of fees, Commissioner’s powers as to The Commissioner may in special circumstances refund the whole or part of any fee paid for a licence, triennial certificate or certificate of registration or any sum paid to the Commissioner by way of contribution or levy to the Fidelity Account. [Section 136A inserted: No. 74 of 1980 s. 12; amended: No. 29 of 1982 s. 12; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 134; No. 25 of 2019 s. 60.] ##### 137. Protection from personal liability A person does not incur any liability in tort for anything that the person does, in good faith, in the performance or purported performance of a function under this Act. [Section 137 inserted: No. 58 of 2010 s. 128.] ##### 138. Confidentiality of information officially obtained The *Fair Trading Act 2010* section 112 applies to information obtained for the purposes of this Act. [Section 138 inserted: No. 58 of 2010 s. 129.] ##### 139. Directors of body corporate, liability of (1) Where a licensee is a firm and a body corporate is a partner in the firm or where the licensee is a body corporate, all persons who are directors of the body corporate at the time of any defalcation by the licensee are jointly and severally liable in respect of that defalcation. (2) Where a licensee is a firm and a body corporate is a partner in the firm or where the licensee is a body corporate, all persons who are directors of the body corporate at the time of an order or direction made by a court, the Commissioner, or the State Administrative Tribunal against the licensee are jointly and severally liable in respect of the order or direction. (3) Sections 34B(1), 103(1)(c) and 105(1)(c) apply in respect of a director referred to in subsection (2) as if the references in those sections to a licensee or an agent included the director. (4) A reference in subsection (1), (2) or (3) to a director includes a reference to a person in accordance with whose directions or instructions the directors of the relevant body corporate are accustomed to act. [Section 139 amended: No. 34 of 1998 s. 20; No. 55 of 2004 s. 1017 and 1020; No. 58 of 2010 s. 134.] ##### 140. Other rights and remedies not affected by this Act Except as is expressly provided in this Act, nothing in this Act shall have the effect of limiting, restricting, or otherwise affecting any right or remedy a person would have had if this Act had not been enacted. ##### 141. Rights conferred by Act cannot be waived A person is not competent to waive any rights conferred on him by this Act. ##### 142. General penalty for offences (1) A person who contravenes or fails to comply with any provision of this Act commits an offence against this Act. (2) A person who commits an offence against this Act for which no other penalty is expressly provided in this Act is liable to a penalty of $2 000. [Section 142 amended: No. 43 of 1994 s. 11.] ##### 143. Proceedings for offences (1) Proceedings for an offence against this Act may be taken by the Commissioner. (2) Notwithstanding the provisions of any other Act, proceedings for an offence against this Act may be brought within the period of 3 years after the commission of the alleged offence or, with the consent of the Minister, at any later time. (3) An allegation in a charge of an offence against this Act that a person named therein was or was not licensed or the holder of a current triennial certificate at the time specified therein shall, in the absence of proof to the contrary, be taken as proved. [Section 143 amended: No. 59 of 2004 s. 141; No. 84 of 2004 s. 80; No. 58 of 2010 s. 134.] ##### 144. Forms In addition to the forms for purposes expressly mentioned elsewhere in this Act, the Commissioner may determine the forms to be used for other purposes under this Act and the information to be contained therein and may require that such information be verified by statutory declaration. [Section 144 amended: No. 58 of 2010 s. 134.] ##### 145. Regulations (1) The Governor may make such regulations as are contemplated by this Act or as he considers necessary or expedient for the purposes of this Act. (2) Without limiting the generality of subsection (1), the regulations may — (a) prescribe the procedure of the Commissioner; [(b) deleted] (c) provide for the advertising of notices of applications for licences; (d) prescribe, and provide for the recovery of, any fee for the purposes of this Act, but not in connection with the initiation of a proceeding before the State Administrative Tribunal; (e) prescribe the particulars to be recorded in the registers required to be kept under this Act; (f) prescribe a body or class of bodies for the purposes of the definition of ***authorised financial institution*** in section 67; (g) prescribe a rate of interest and the times at which such interest is to be paid for the purposes of section 68B(1); (h) prescribe the information to be contained in a receipt for the purposes of section 69(1)(a); (ha) prescribe the manner in which a record is to be kept, and the information to be contained in a record, for the purposes of section 69(2); (hb) prescribe the times at which and the proportions in which moneys are to be paid or transferred under section 127; (i) prescribe the manner of making claims against the Fidelity Account and the manner of verifying any claim including a condition that the claim be verified by statutory declaration; (j) prescribe generally for such other matters as may be considered necessary for the purposes of protecting the Fidelity Account or of giving full effect to the intent of the provisions of this Act relating to the Fidelity Account; (ja) prescribe a body or class of bodies for the purposes of the definition of ***lending institution*** in section 131A; (k) prescribe a maximum amount for the purposes of section 131M(3)(a); (ka) prescribe persons for the purposes of section 131O(1)(f); (l) prescribe penalties not exceeding $1 000 for any breach of the regulations. [(3) deleted] [Section 145 amended: No. 29 of 1982 s. 11; No. 77 of 1984 s. 5; No. 65 of 1987 s. 42; No. 18 of 1988 s. 5; No. 43 of 1994 s. 10; No. 56 of 1995 s. 48; No. 59 of 1995 s. 39 and 41; No. 55 of 2004 s. 1018; No. 77 of 2006 Sch. 1 cl. 147(2); No. 58 of 2010 s. 130 and 134; No. 34 of 2020 s. 101(2).] ## Part XI — Savings and transitional [Division 1 (s. 146, 147) deleted: No. 23 of 2014 s. 81.] [Division heading deleted: No. 23 of 2014 s. 82.] ##### 148. Terms used In this Division — commencement day means the day on which Part 6 of the *Acts Amendment (Fair Trading) Act 2010* comes into operation; former Board means the Real Estate and Business Agents Supervisory Board established by section 6 of the Act immediately prior to the commencement day; former Registrar means a Registrar appointed under section 12 of the Act prior to the commencement day; liability means any liability, duty or obligation whether actual, contingent or prospective, liquidated or unliquidated, or whether owed alone or jointly or jointly and severally with any other person; right means any right, power, privilege or immunity whether actual, contingent or prospective. [Section 148 inserted: No. 58 of 2010 s. 132.] ##### 149. Former Board abolished Subject to sections 156 and 157, at the beginning of the commencement day, the former Board is abolished and its members go out of office. [Section 149 inserted: No. 58 of 2010 s. 132.] ##### 150. References to former Board If in a written law or other document or instrument there is a reference to the former Board, that reference may, where the context so requires, be read as if it had been amended to be a reference to the Commissioner. [Section 150 inserted: No. 58 of 2010 s. 132.] ##### 151. Immunity continues Despite the abolition of the former Board, if the former Board had the benefit of any immunity in respect of an act, matter or thing done or omitted before the commencement day, that immunity continues in that respect for the benefit of the Commissioner. [Section 151 inserted: No. 58 of 2010 s. 132.] ##### 152. Notices by former Board (1) If the former Board has fixed by notice the maximum amount of remuneration of a licensee under section 61 of the Act immediately prior to commencement day, that notice is to be taken to have been given by the Commissioner and continues in force until amended or revoked by the Commissioner. (2) If notice has been given to the former Board under section 116(2) of the Act as it was immediately prior to commencement day, that notice is taken to be given to the Commissioner for the purposes of that subsection. [Section 152 inserted: No. 58 of 2010 s. 132.] ##### 153. References to former Registrar (1) If in a written law or other document or instrument there is a reference to the former Registrar, that reference may, where the context so requires, be read as if it had been amended to be a reference to the Commissioner. (2) If a certificate has been given by a former Registrar under section 134(3) of the Act as it was immediately prior to commencement day, that certificate is to be treated as if it were given by the Commissioner for the purposes of that subsection. [Section 153 inserted: No. 58 of 2010 s. 132.] ##### 154. Unfinished investigations by former Board Investigations being carried out by the former Board under the Act as it was prior to the commencement day that are not complete by the commencement day — (a) are taken to have been commenced by the Commissioner for the purposes of the Act; and (b) are to continue under the direction and control of the Commissioner. [Section 154 inserted: No. 58 of 2010 s. 132.] ##### 155. Unfinished proceedings by former Board (1) Proceedings before the former Board that are not complete by the commencement day — (a) are taken to have been commenced by the Commissioner for the purposes of the Act; and (b) are to continue under the direction and control of the Commissioner. (2) Proceedings before the State Administrative Tribunal or another court commenced by allegation against a licensed real estate or business agent brought by the former Board that are not complete by the commencement day — (a) are taken to have been commenced by an allegation by the Commissioner for the purposes of the Act; and (b) are to continue under the direction and control of the Commissioner. [Section 155 inserted: No. 58 of 2010 s. 132.] ##### 156. Winding‑up former Board On and after the commencement day — (a) the Commissioner is to take control of all registers, documents, books and other records (however compiled, recorded or stored) relating to the former Board and the exercise of its functions, and of any tape, disk or other device or medium relating to such records; and (b) all assets of the former Board are to be transferred to the State to be administered in the department, or the residual assets may be realised and the proceeds, together with any moneys in hand, are to be credited to the Consolidated Account; and (c) all rights, liabilities and obligations of the former Board that existed immediately before the commencement day devolve on the Commissioner acting on behalf of, and in the name of, the State; and (d) all contracts, agreements and undertakings made by and with the former Board and having effect immediately before the commencement day have effect as contracts, agreements and undertakings made with the Commissioner acting on behalf of, and in the name of, the State and may be enforced by or against the State accordingly; and (e) any legal or other proceedings or any remedies that might, but for the operation of the *Acts Amendment (Fair Trading) Act 2010* Part 6, have been commenced or continued by or against or have been available to the former Board may be commenced or continued by or against or are available to the Commissioner acting on behalf of, and in the name of, the State, as the case requires; and (f) any fees, charges or other moneys payable to the Board under this Act and outstanding at the commencement day become payable to the chief executive officer at the time, and in the manner, in which those moneys would have been payable to the former Board under this Act. [Section 156 inserted: No. 58 of 2010 s. 132.] ##### 157. Final report by former Board (1) The provisions of the *Financial Management Act 2006* Part 5 Division 3 apply to the former Board. (2) The chief executive officer is to include the final report submitted under subsection (1) in the department’s annual report for that financial year. [Section 157 inserted: No. 58 of 2010 s. 132.] ##### 158. Staff of former Board (1) The officers of the former Board and the former Registrar who held office immediately before the commencement day continue to be employed, under and subject to the *Public Sector Management Act 1994* Part 3, as officers of the department. (2) A person mentioned in subsection (1) is to be regarded as having been engaged or employed, as is relevant, by the chief executive officer. (3) Except as otherwise agreed by a person mentioned in subsection (1), the remuneration, existing or accrued rights, rights under a superannuation scheme or continuity of service of the person are not affected, prejudiced or interrupted by the operation of subsection (1). [Section 158 inserted: No. 58 of 2010 s. 132.] ##### 159. Transitional regulations (1) If there is not sufficient provision in this Part for dealing with a transitional matter, the Governor may make regulations prescribing all matters that are required, necessary or convenient to be prescribed in relation to that matter. (2) In subsection (1) — transitional matter means a matter that needs to be dealt with for the purpose of effecting the transition from this Act as enacted immediately before the commencement day to this Act as amended by the *Acts Amendment (Fair Trading) Act 2010*. (3) Regulations made under subsection (1) may provide that specific provisions of a written law — (a) do not apply; or (b) apply with specific modifications, to or in relation to any matter. (4) Regulations made under subsection (1) must be made within 12 months after the commencement day. (5) If regulations made under subsection (1) provide that a specified state of affairs is to be taken to have existed, or not to have existed, on and from a day that is earlier than the day on which the regulations are published in the *Gazette* but not earlier than the commencement day, the regulations have effect according to their terms. (6) In subsection (5) — specified means specified or described in the regulations. (7) If regulations contain a provision referred to in subsection (5), the provision does not operate so as — (a) to affect, in a manner prejudicial to any person (other than the State), the right of that person existing before the day of publication of those regulations; or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day of publication of those regulations. [Section 159 inserted: No. 58 of 2010 s. 132.]