The Settlement Agents Act 1981 sets who may act as settlement agents in Western Australia and governs licensing, conduct, trust‑accounting, audits, discipline and a Fidelity Guarantee scheme to compensate certain client losses. It affects settlement agents, their clients, banks and regulators (the Commissioner, CEO and SAT) by imposing licensing and record‑keeping obligations, trust‑money safeguards, audit and review powers, and funding/levy mechanisms that shape compliance costs and consumer protection.
The Settlement Agents Act 1981 (WA) is the principal statute governing the licensing, regulation, and supervision of settlement agents in Western Australia. A settlement agent is the professional who handles the conveyancing process on settlement day: they complete the formal transfer of title or ownership by coordinating payment of the balance of the purchase price and the delivery of the relevant transfer documents.
The Act creates a mandatory licensing regime for anyone who arranges or effects settlements of real estate transactions (property conveyancing) or business transactions (business sales) for reward. It imposes strict trust account obligations, requires annual audits, establishes a Fidelity Guarantee Account to compensate victims of settlement agent defalcations, and creates disciplinary powers exercised by the State Administrative Tribunal.
Administration transferred substantially to the Commissioner for Fair Trading (under the Fair Trading Act 2010) and the State Administrative Tribunal following the 2010 amendments, which deleted the earlier industry board structure (Part II) that had previously governed the profession.
Main concepts
Settlement: The completion of a real estate or business transaction by payment of the balance of the purchase price (section 3 definition).
: A person who arranges or effects the settlement of a real estate transaction for reward, or who carries on such a business (section 3). Real estate transactions include the disposal and acquisition of land and associated property within Western Australia.
Current sections
Direct links to the current provisions in Settlement Agents Act 1981.
9
Div 1
General
Division 1 — General
Remuneration of settlement agents 33
Maximum remuneration, disputes over remuneration etc. 35
Records and premises, licensees’ duties as to 37
Real estate settlement agents, functions of 37
Business settlement agents, functions of 40
Div 2
Trust accounts
Division 2 — Trust accounts
Terms used 41
Trust accounts etc. of licensees 41
49A. Client may ask settlement agent for separate trust account 43
49B. Interest on trust accounts 44
49C. Settlement agents to give Commissioner information about trust accounts 45
Receipts, accounts etc. by settlement agents 46
Audits of trust accounts 46
Date of audit, Commissioner may change 48
Auditors, qualification and approval of 49
Auditors, appointment of 50
Audit of business carried on at more than one place, directions as to 50
Approvals etc. under this Division, Commissioner’s power to cancel etc. 51
Audits, settlement agents’ duties and auditors’ powers as to 51
Audits, bankers’ duties as to 51
Auditors’ reports, content of 52
Moneys etc. held on trust, statement of by settlement agents 52
Auditor’s report to report breaches of law etc. 53
Auditors’ duty of confidentiality 54
Right of some persons to information in auditors’ reports 54
Offences under this Division 55
Auditors’ remuneration 55
Settlement agents with no accounts to audit 55
Accounts of firm or body corporate or settlement agent with branch office, effect of audits as to 56
Audit of trust account, Commissioner may do 56
Settlement agent to allow Commissioner’s auditor etc. to inspect accounts etc. 57
Cost of audit done under s. 69 57
Application of s. 63 to certain persons 57
Restraining bank etc. from dealing with settlement agent’s account, SAT’s powers as to 58
Suspension of settlement agents, appointment of supervisors etc., SAT’s powers as to 59
Effect of s. 74 orders appointing supervisor 61
Supervisors’ duties 62
Hindering etc. supervisors, offence 63
Discharge or variation of s. 73 or 74 order 64
SAT’s additional powers as to s. 73, 74 or 78 orders 64
Service of s. 73, 74, 78 and 79 orders; penalty for breach of 65
Banks etc., duty to disclose certain accounts etc. if required to by authorised person 67
81A. Information about trust accounts, Commissioner’s power to obtain 67
Div 3
Discipline
Division 3 — Discipline
Code of conduct for settlement agents 69
Disciplinary action by SAT, alleging cause for 69
Disciplinary action, SAT’s powers as to 70
Offences that cause licence and triennial certificate to be cancelled 72
85A. Cancellation of licence due to insufficient resources or cessation of business 72
Persons with cancelled licences etc., offences by and in respect of 73
Part V — Fidelity Guarantee Account
Account established; administration of Account 74
Moneys to be credited to Account 74
Investment of moneys in Account 75
Expenditure from Account 75
Payments to Account by applicants for licences etc. 76
Purpose of Account; making claims against Account 76
Levies for Account against certificate holders 77
Claims against Account; recovery from Account 78
Defences to claims against Account 79
Subrogation of rights of claimant against Account 79
Insufficiency in Account 79
State may insure against claims 80
Application of insurance money 81
Advertising for claims in relation to defaulting licensee 82
Documents etc. to support claims, CEO may require 82
102AA. Commissioner may investigate claims against Fidelity Account 82
Part VA — Education and General Purpose Account
102A. Account established; administration of account 84
102B. Moneys to be credited to account 84
102C. Expenditure from account 85
102D. Investment of moneys in account 85
Part VI — Settlement Agents Interest Account
Account established; administration of account 87
Moneys to be credited to account 87
Expenditure from account 88
Investment of moneys in account 88
Part VII — Miscellaneous
Registers of licensees etc., Commissioner to keep etc. 89
111A. Offence to give false or misleading information 89
Commissioner’s certificate 90
Annual report by department 90
Reports by Commissioner to Minister 91
Refunds of fees, Commissioner’s powers as to 91
Protection from personal liability 92
Confidentiality of information officially obtained 92
Liability of directors of body corporate for defalcations 92
Other rights and remedies not affected by this Act 92
Rights conferred by Act cannot be waived 92
General penalty for offences 92
Proceedings for offences 93
Forms 93
Regulations 93
Part VIII — Savings and transitional
Terms used 96
Former Board abolished 96
References to former Board 96
Immunity continues 97
Notices and rules made by former Board 97
References to former Registrar 97
Unfinished investigations by former Board 98
Unfinished proceedings by former Board 98
Winding‑up former Board 98
Final report by former Board 100
Staff of former Board 100
Transitional regulations 100
Sch 1
Grant of licence
Schedule 1 — Grant of licence
Division 1 — Qualifications
Real estate settlement agent 102
Business settlement agent 103
Licence by reason of qualification under cl. 1(1)(c) and 2(1)(c) 104
Licence by reason of qualification under cl. 1(1)(d) and 2(1)(d) 104
Dead or incapacitated licensee, conduct of business of 104
Division 2 — Disqualification
Term used: business licence 105
Natural persons, disqualification of 105
Bodies corporate, disqualification of 106
Firms, disqualification of 106
Division 3 — Temporary arrangements
Death or withdrawal of partner in firm or director of body corporate, Commissioner to be notified etc. 107
More sections below
Source text: opening excerpt
Sourced from the Western Australian Legislation website (legislation.wa.gov.au). Not the authorised version.
Western Australia
Settlement Agents Act 1981
Western Australia
Settlement Agents Act 1981
Contents
Part I — Preliminary
Short title 2
Commencement 2
Terms used 2
Term used: settlement agent 6
Powers of investigation 7
Application for review by SAT 7
Part III — Licensing
Applications for licences 10
Settlement agents must be licensed 10
26A. Licensed real estate agent may be exempted for certain settlements 11
26B. Licensed business agent may be exempted for certain settlements 13
Licensing of individuals 15
Firms, licensing of 16
Bodies corporate, licensing of 17
Licence, effect of 18
Licensee’s triennial certificate: grant and renewal 19
Licensee’s triennial certificate: late renewal 20
Licensee’s triennial certificate: late renewal after 12 months 21
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 25
34D. Firm or body corporate must surrender licence and triennial certificate in certain circumstances 25
Fidelity insurance and professional indemnity insurance for licensees 25
Licensees to notify Commissioner of certain changes 27
Registered office of licensee 28
Branch office of licensee 29
Triennial certificates, contents of 29
Real estate settlement agent
Business settlement agent: A person who arranges or effects the settlement of a business transaction for reward, or who carries on such a business (section 3). Business transactions include the disposal and acquisition of businesses, shares in businesses, and their goodwill.
Licence: The formal authority to carry on business as a settlement agent, granted by the Commissioner. Separate licences exist for real estate settlement agents and business settlement agents; a person may hold both.
Triennial certificate: A certificate granted to a licensee to carry on business for a three-year period. Both a current licence and a current triennial certificate are required to lawfully operate (section 26). The distinction matters for trust account and fidelity obligations.
Defalcation: Defined broadly in section 3 to include criminal or fraudulent conduct of a licensee, their servants, agents, or partners, or directors of a body corporate licensee, in the course of business resulting in pecuniary loss or property loss to any other person.
Fidelity Guarantee Account: The State-backed compensation fund established under section 87, funded by licensee contributions, levies, and recoveries. Used to reimburse persons who suffer pecuniary or property loss from defalcation by a licensed settlement agent.
Trust account: An account maintained exclusively for moneys received by the settlement agent on behalf of clients. Strictly segregated from the agent's own funds.
Commissioner: The Commissioner for Fair Trading under the Fair Trading Act 2010 (section 3). Holds licensing, investigation, and audit powers.
SAT: The State Administrative Tribunal, which reviews licensing decisions and exercises disciplinary and trust account restraint powers.
Who it affects
Settlement agents (real estate and business): Must hold a current licence and triennial certificate, maintain trust accounts, comply with audit requirements, pay into the Fidelity Guarantee Account, and follow the code of conduct.
Licensed real estate agents and business agents: Under sections 26A and 26B, real estate and business agents licensed under the Real Estate and Business Agents Act 1978 may apply for an exemption allowing them to handle settlements for transactions in which they acted as agent, without separate licensing, provided the settlement is not done for reward and the required warning notice is given.
Legal practitioners: Exempt from the Act when acting in the course of their profession (section 4(1)(a)).
Banks and trustee companies: Section 4(2) exempts banks and trustee companies acting as settlement agents from most of the trust account (Division 2 of Part IV), fidelity (Part V), and some other obligations.
Clients of settlement agents: Benefit from trust account protections (their money cannot be used to pay the agent's other creditors), audit oversight, and the Fidelity Guarantee Account as a backstop.
Financial institutions (authorised financial institutions): Must pay interest on settlement agents' trust accounts to the Settlement Agents Interest Account (section 49B). Must disclose certain information about trust accounts to authorised persons (section 81).
Auditors: Must be approved by the Commissioner, must conduct annual audits of trust accounts, and must report breaches of law to the Commissioner (section 62).
Key obligations
Licensing (section 26): No person may carry on business as a settlement agent, or hold themselves out as one, after the appointed day without a current licence and triennial certificate. Penalty: $100,000.
Trust accounts (section 49): Every licensee with a current triennial certificate must maintain one or more trust accounts exclusively for client money. All client money must be paid into trust as soon as practicable. Trust account money cannot be used for the agent's debts, cannot be garnished by the agent's creditors, and can only be withdrawn to complete the settlement, in accordance with the contract, with written consent of all parties, or as otherwise authorised.
Settlement money restrictions (section 49(4)): Settlement moneys received in the course of arranging or effecting a settlement shall not be withdrawn from trust except to complete the settlement, in accordance with the contract, or with the prior written written consent of all parties.
Record-keeping (section 49(6)): Licensees must keep full and accurate accounts; enter all receipts and payments before the end of the next business day; keep accounts conveniently auditable; and correctly balance monthly.
Receipts (section 50): When a settlement agent receives money, they must (unless received by electronic transfer) immediately give a receipt. All receipts must be prenumbered.
Trust account notifications (section 49C): Settlement agents must notify the Commissioner when they open or close a trust account. Both the agent and the bank must notify the Commissioner if a trust account becomes overdrawn.
Annual audits (section 51): Settlement agents must appoint an approved auditor. Audits of trust accounts must be conducted annually for the period ending 30 June. The auditor's report must be lodged with the Commissioner.
Auditor's report content (section 60): Reports must state whether the accounts are properly kept, whether the balance is supported by client funds, whether there has been any deficiency, and any other prescribed matters.
Mandatory reporting by auditor (section 62): Auditors must report to the Commissioner any breaches of the Act discovered during an audit.
Fidelity Guarantee Account payments (section 92): Each applicant for a licence or renewal of a triennial certificate must pay $150 (or such other sum as approved) to the Account.
Powers and discretions
Commissioner (licensing):
May grant or refuse licences and triennial certificates (Part III).
May impose conditions (section 34), including special conditions (section 34AA) on licences and triennial certificates.
May grant a licence or triennial certificate without notice to the applicant in certain cases (section 34A).
May change the annual audit date (section 52).
May conduct own-motion audits of trust accounts (section 69) and recover the cost.
May obtain information about trust accounts from financial institutions (section 81A).
May require information to support fidelity claims (section 102AA).
SAT (disciplinary and trust account):
May suspend a licence in some cases (section 34B).
May restrain a bank from dealing with a settlement agent's account (section 73).
May suspend a settlement agent, appoint a supervisor, and vest the agent's books and records in the supervisor (section 74).
Has additional powers to make consequential orders (section 79).
Exercises disciplinary powers on allegations of cause for disciplinary action (sections 83-84).
Chief executive officer (fidelity claims):
May settle or allow claims against the Fidelity Guarantee Account (section 95).
May impose levies on triennial certificate holders (section 94).
May require information from claimants (section 102).
May investigate fidelity claims (section 102AA).
May advertise for claims against a defaulting licensee (section 101).
Auditors: May require production of all documents and information from the settlement agent and from the bank (sections 58-59).
Penalties and enforcement
Unlicensed practice (section 26): $100,000 fine.
Trust account violations: Sections 65 of Part IV Division 2 create a range of offences for trust account failures. Specific offences include: receiving money without issuing a receipt; withdrawing trust money except as authorised; failure to keep required records; failure to notify the Commissioner of overdrawn accounts.
Obstruction of supervisors (section 77): It is an offence to hinder or obstruct a supervisor appointed under section 74.
Breach of SAT orders (section 80): It is an offence to breach a section 73 (bank restraint), section 74 (supervision), or section 78 (variation) order.
General penalty (section 120): Any offence against the Act for which no specific penalty is provided: $2,000.
Directors' liability (section 117): Directors of a body corporate licensee are jointly and severally personally liable for defalcations by that licensee.
Disciplinary powers (section 84): SAT may cancel, suspend, or impose conditions on a licence or triennial certificate; censure or reprimand a licensee; or require a licensee to pay a fine not exceeding $5,000.
Mandatory cancellation (section 85): Certain criminal offences automatically cause the cancellation of a licence and triennial certificate.
Proceedings limitation (section 121): Proceedings must be brought within 3 years of the offence, or with the Minister's consent at any later time.
Process and timelines
Licensing:
Applications in writing in the form determined by the Commissioner (section 24).
Commissioner must give applicants opportunity to respond before an adverse decision (section 24(5)).
Licences once granted are of indefinite duration, but a triennial certificate (required to carry on business) must be renewed every 3 years.
Triennial certificate renewal (sections 31-33):
Standard renewal: application before certificate expires.
Late renewal: allowed within 12 months after expiry.
Late renewal after 12 months: requires additional process.
Audits (sections 51-52):
Annual period: 12 months ending 30 June.
Commissioner may change the date for any licensee.
Auditor's report must be lodged within the prescribed period after the audit period.
Fidelity claims (section 93):
Claims must be notified within 3 years of awareness of the defalcation (primary limitation).
Within 6 years if the chief executive officer considers it just and reasonable.
The claimant must exhaust all relevant rights of action against the defaulting licensee before commencing action without the chief executive officer's leave (section 95(1)).
Subrogation (section 97):
On payment from the Account, the State is automatically subrogated to all rights of the claimant against the defaulting licensee.
The State v ASIC [2020] FCA 810 case demonstrates that the State will use corporate law mechanisms (such as reinstatement of deregistered companies) to pursue those subrogated rights.
Review (section 23):
Any person aggrieved by a reviewable decision may apply to SAT.
Reviewable decisions include most Commissioner decisions under Part III, trust account decisions under Part IV Division 2, and chief executive officer decisions under sections 93 and 95.
Interactions with other law
Fair Trading Act 2010 (WA): The Commissioner for Fair Trading administers this Act. Investigation powers under section 61 and Part 6 of the Fair Trading Act apply to this Act (section 22). Recoveries under the Fair Trading Act are credited to the Fidelity Guarantee Account (section 88(d)).
Real Estate and Business Agents Act 1978 (WA): Real estate agents and business agents licensed under that Act may apply for exemptions under sections 26A and 26B to conduct settlements for their own transactions without separate settlement agent licensing. The exemption conditions are strict, requiring no reward for settlement services and the giving of a prescribed warning notice.
Financial Management Act 2006 (WA): The Fidelity Guarantee Account is established as an agency special purpose account under section 16 of that Act (section 87).
Trustees Act 1962 (WA): Trust funds in the Fidelity Guarantee Account may be invested in the same manner as trust funds under Part III of the Trustees Act (section 89).
Corporations Act 2001 (Cth): Body corporate settlement agents must have the required number of directors holding current triennial certificates. Directors are personally liable for defalcations (section 117). The State's subrogated rights post-claim may require reinstating deregistered companies under section 601AH(2) of the Corporations Act (as in State v ASIC [2020] FCA 810).
State Administrative Tribunal Act 2004 (WA): The SAT exercises all its disciplinary, trust account, and review functions under this Act through its own procedure under the SAT Act.
Gotchas
Both licence and triennial certificate are required: It is not sufficient to hold a licence. A current triennial certificate is also required. A licensee whose triennial certificate has expired cannot carry on business. Section 26(3) specifically provides that a person required to surrender under section 34D is taken not to be licensed or certificate-holding.
Trust money withdrawal is strictly controlled: Section 49(4) prohibits withdrawal of settlement moneys from trust except to complete the settlement, in accordance with the contract, or with prior written consent of all parties. "Settlement moneys" are the purchase price moneys, not all client money. Agents who release funds early or without authorisation commit an offence.
The director personal liability provision (section 117) is automatic: Where a licensee is a firm with a body corporate partner, or where the licensee is a body corporate, all directors at the time of any defalcation are jointly and severally personally liable. This is not fault-based; the director need not have been involved in or aware of the defalcation.
The exemption for real estate agents is not self-executing: The exemption under sections 26A and 26B requires a formal application and grant of exemption by the Commissioner. It is not automatic. And the exemption only applies if the agent does not charge for the settlement and gives the prescribed warning notice. Failure to give the notice means the exemption does not apply to that settlement.
Fidelity claims are subject to exhaustion requirements: Before commencing an action in court, a claimant must (without the chief executive officer's leave) exhaust all relevant rights of action against the defaulting licensee and any other person. This is a precondition, not just a procedural technicality.
The 3-year claim limitation is counted from awareness, not from the defalcation: Section 93(2) requires notice of the claim within 3 years after the day the claimant became aware of the defalcation. A claimant who was unaware for years after the defalcation still has 3 years from awareness. However, an absolute 6-year outer limit applies (with just and reasonable discretion).
Practical examples
Conveyancing firm carrying on business: A conveyancing company wants to carry on business as a settlement agent in WA. It must apply to the Commissioner for a real estate settlement agent's licence, ensure the required number of directors or representatives hold individual licences and current triennial certificates, pay into the Fidelity Guarantee Account, maintain trust accounts at an authorised financial institution, appoint an approved auditor, and comply with the code of conduct. Carrying on business without a current triennial certificate exposes the company and its directors to prosecution.
Client whose agent has defrauded them: A property buyer's settlement agent misappropriates $200,000 of the buyer's settlement funds. The buyer discovers the defalcation and notifies the chief executive officer within 3 years. The buyer must first exhaust rights against the defaulting agent (or obtain leave to skip that step). The chief executive officer may then allow the claim from the Fidelity Guarantee Account up to the amount of the defalcation, less any amounts recovered from other sources. On payment, the State acquires subrogated rights against the agent.
Reinstating a deregistered company to pursue subrogated rights: The State pays out $444,529 from the Fidelity Guarantee Account to a property buyer under section 93, acquiring subrogated rights under section 97. The defaulting agent was a company that has since been deregistered. The State applies to the Federal Court under section 601AH(2) of the Corporations Act to reinstate the company's registration so the State can pursue the subrogated claim. The court reinstates the company (as in State of Western Australia v ASIC [2020] FCA 810).
Real estate agent seeking exemption: A licensed real estate agent handled the sale of a property and wants to also complete the settlement without separately licensing as a settlement agent. The agent applies to the Commissioner for an exemption under section 26A. If granted, the agent must: not charge for the settlement; give the buyer and seller the prescribed warning notice before beginning settlement; and ensure the exemption remains current. The exemption is personal to the agent and is not transferable.
Section 1The appointed day is 1 Nov 1982, see *Gazette* 29 Oct 1982 p. 4322.
Licence and triennial certificate not transferable etc. 30
41A. Duplicate licence or triennial certificate 30
41B. Licensee to comply with prescribed educational requirements 30
Use of business names by licensees 31
Notices to be exhibited at offices; particulars to appear on documents 31
Part IV — Controls
Division 1 — General
Remuneration of settlement agents 33
Maximum remuneration, disputes over remuneration etc. 35
Records and premises, licensees’ duties as to 37
Real estate settlement agents, functions of 37
Business settlement agents, functions of 40
Division 2 — Trust accounts
Terms used 41
Trust accounts etc. of licensees 41
49A. Client may ask settlement agent for separate trust account 43
49B. Interest on trust accounts 44
49C. Settlement agents to give Commissioner information about trust accounts 45
Receipts, accounts etc. by settlement agents 46
Audits of trust accounts 46
Date of audit, Commissioner may change 48
Auditors, qualification and approval of 49
Auditors, appointment of 50
Audit of business carried on at more than one place, directions as to 50
Approvals etc. under this Division, Commissioner’s power to cancel etc. 51
Audits, settlement agents’ duties and auditors’ powers as to 51
Audits, bankers’ duties as to 51
Auditors’ reports, content of 52
Moneys etc. held on trust, statement of by settlement agents 52
Auditor’s report to report breaches of law etc. 53
Auditors’ duty of confidentiality 54
Right of some persons to information in auditors’ reports 54
Offences under this Division 55
Auditors’ remuneration 55
Settlement agents with no accounts to audit 55
Accounts of firm or body corporate or settlement agent with branch office, effect of audits as to 56
Audit of trust account, Commissioner may do 56
Settlement agent to allow Commissioner’s auditor etc. to inspect accounts etc. 57
Cost of audit done under s. 69 57
Application of s. 63 to certain persons 57
Restraining bank etc. from dealing with settlement agent’s account, SAT’s powers as to 58
Suspension of settlement agents, appointment of supervisors etc., SAT’s powers as to 59
Effect of s. 74 orders appointing supervisor 61
Supervisors’ duties 62
Hindering etc. supervisors, offence 63
Discharge or variation of s. 73 or 74 order 64
SAT’s additional powers as to s. 73, 74 or 78 orders 64
Service of s. 73, 74, 78 and 79 orders; penalty for breach of 65
Banks etc., duty to disclose certain accounts etc. if required to by authorised person 67
81A. Information about trust accounts, Commissioner’s power to obtain 67
Division 3 — Discipline
Code of conduct for settlement agents 69
Disciplinary action by SAT, alleging cause for 69
Disciplinary action, SAT’s powers as to 70
Offences that cause licence and triennial certificate to be cancelled 72
85A. Cancellation of licence due to insufficient resources or cessation of business 72
Persons with cancelled licences etc., offences by and in respect of 73
Part V — Fidelity Guarantee Account
Account established; administration of Account 74
Moneys to be credited to Account 74
Investment of moneys in Account 75
Expenditure from Account 75
Payments to Account by applicants for licences etc. 76
Purpose of Account; making claims against Account 76
Levies for Account against certificate holders 77
Claims against Account; recovery from Account 78
Defences to claims against Account 79
Subrogation of rights of claimant against Account 79
Insufficiency in Account 79
State may insure against claims 80
Application of insurance money 81
Advertising for claims in relation to defaulting licensee 82
Documents etc. to support claims, CEO may require 82
102AA. Commissioner may investigate claims against Fidelity Account 82
Part VA — Education and General Purpose Account
102A. Account established; administration of account 84
102B. Moneys to be credited to account 84
102C. Expenditure from account 85
102D. Investment of moneys in account 85
Part VI — Settlement Agents Interest Account
Account established; administration of account 87
Moneys to be credited to account 87
Expenditure from account 88
Investment of moneys in account 88
Part VII — Miscellaneous
Registers of licensees etc., Commissioner to keep etc. 89
111A. Offence to give false or misleading information 89
Commissioner’s certificate 90
Annual report by department 90
Reports by Commissioner to Minister 91
Refunds of fees, Commissioner’s powers as to 91
Protection from personal liability 92
Confidentiality of information officially obtained 92
Liability of directors of body corporate for defalcations 92
Other rights and remedies not affected by this Act 92
Rights conferred by Act cannot be waived 92
General penalty for offences 92
Proceedings for offences 93
Forms 93
Regulations 93
Part VIII — Savings and transitional
Terms used 96
Former Board abolished 96
References to former Board 96
Immunity continues 97
Notices and rules made by former Board 97
References to former Registrar 97
Unfinished investigations by former Board 98
Unfinished proceedings by former Board 98
Winding‑up former Board 98
Final report by former Board 100
Staff of former Board 100
Transitional regulations 100
Schedule 1 — Grant of licence
Division 1 — Qualifications
Real estate settlement agent 102
Business settlement agent 103
Licence by reason of qualification under cl. 1(1)(c) and 2(1)(c) 104
Licence by reason of qualification under cl. 1(1)(d) and 2(1)(d) 104
Dead or incapacitated licensee, conduct of business of 104
Division 2 — Disqualification
Term used: business licence 105
Natural persons, disqualification of 105
Bodies corporate, disqualification of 106
Firms, disqualification of 106
Division 3 — Temporary arrangements
Death or withdrawal of partner in firm or director of body corporate, Commissioner to be notified etc. 107
Schedule 2 — Functions of a settlement agent
Real estate settlement agent 108
Business settlement agent 110
Notes
Compilation table 112
Other notes 116
Defined terms
Western Australia
Settlement Agents Act 1981
An Act to make provision with respect to the licensing, regulation, and supervision of settlement agents, and for related purposes.
Part I — Preliminary
1. Short title
This Act may be cited as the Settlement Agents Act 1981.
2. Commencement
The provisions of this Act shall come into operation on such day or days as is or are, respectively, fixed by proclamation.
3. Terms used
(1) In this Act unless the context otherwise requires —
appointed day 1 means the day fixed by the Minister pursuant to section 26(2);
approved means approved by the Commissioner;
auditor means a person appointed under this Act to audit the trust accounts of a settlement agent;
bank means —
(a) an ADI (authorised deposit‑taking institution) as defined in section 5 of the Banking Act 1959 of the Commonwealth; or
(b) a bank constituted by a law of a State, a Territory or the Commonwealth;
business means —
(a) subject to paragraph (b), the business of a settlement agent; and
(b) in the definition of business transaction and in section 45(a), any commercial undertaking or enterprise in respect of any profession, trade, employment, vocation or calling within the State;
business settlement agent means any person who arranges or effects a settlement of a business transaction for reward or who, whether for reward or otherwise, carries on business arranging or effecting settlements of business transactions and whether or not that business is carried on in conjunction with or as part of or associated with any other profession, trade, occupation or employment, but does not include the exceptions specified in section 4(1);
business transaction —
(a) means the disposal by sale or exchange, and the acquisition by purchase or exchange of a business and any share or interest in a business or the goodwill thereof within the State; and
(b) includes any disposal by sale or exchange, and any acquisition by purchase or exchange of goods, chattels, or other property within the State relating to a business transaction of the kind specified in paragraph (a),
but does not include —
(c) the sale, exchange, or other disposal or a purchase, exchange, or other acquisition of a share in the capital of a body corporate or an option in respect thereof;
Commissioner has the meaning given in the Fair Trading Act 2010 section 6;
defalcation by a licensee includes criminal or fraudulent conduct —
(a) of a licensee; or
(b) of any one or more of the servants or agents of the licensee; or
(c) of a person who is a partner in the business of the licensee; or
(d) where the licensee is a firm and a body corporate is a partner in the firm or where the licensee is a body corporate, of any one or more of the directors, officers, servants, or agents of the body corporate,
in the course of the business of the licensee and from which arises pecuniary loss or loss of property to any other person;
department means the department of the Public Service principally assisting the Minister in the administration of this Act;
Fidelity Guarantee Account or Account means the account established under section 87;
fidelity guarantee fee means the fee prescribed pursuant to section 92(1);
General Purpose Account means the Education and General Purpose Account established under section 102A;
Interest Account means the Settlement Agents Interest Account established under section 103(1);
licence means the licence of a real estate settlement agent or of a business settlement agent under this Act;
licensed means licensed as a settlement agent under this Act;
licensee means a person licensed under this Act;
real estate or land means land within the State and includes buildings or parts of buildings within the State;
real estate settlement agent means any person who arranges or effects the settlement of a real estate transaction for reward or who, whether for reward or otherwise, carries on business arranging or effecting settlements of real estate transactions and whether or not that business is carried on in conjunction with or as part of or associated with any other profession, trade, occupation or employment, but does not include the exceptions specified in section 4(1);
real estate transaction —
(a) means the disposal by sale or exchange, and the acquisition by purchase or exchange of real estate; and
(b) includes any disposal by sale or exchange, or any acquisition by purchase or exchange of goods, chattels or other property relating to a real estate transaction of a kind specified in paragraph (a);
renewal means renewal of a triennial certificate;
reward means any valuable consideration in money or moneys worth paid or received as commission or remuneration —
(a) whether payable in cash or kind; and
(b) whether paid or received directly or indirectly; and
(c) whether paid or received separately or as a component of a composite price or fee paid or received in respect of any transaction or service;
settlement means the completion of a real estate transaction or a business transaction (as the case may be) by payment of the balance of purchase price in respect to such real estate transaction or business transaction;
settlement agent means a person who is a real estate settlement agent or a business settlement agent or both a real estate settlement agent and a business settlement agent but does not include the exceptions specified in section 4(1);
settlement agents’ code of conduct or code of conduct means the code prescribed under section 82;
supervisor means a person appointed by the Commissioner as supervisor of the business of a settlement agent;
transaction means a real estate transaction or a business transaction or both a real estate transaction and a business transaction;
Treasurer means the Treasurer of the State;
Treasury means the State Treasury;
triennial certificate means a certificate granted under this Act to a licensee to carry on business as a settlement agent;
trustee company means a body corporate authorised by the law of any State or Territory of the Commonwealth to apply for and obtain, in its own name, a grant of probate or of letters of administration of the estate of a deceased person.
(2) Where a reward is paid or received by a person by reason of, or in contemplation of, some other person arranging or effecting a settlement that reward shall, for the purposes of this Act, be deemed to be paid to or received by the person arranging or effecting the settlement.
(3) Where 2 or more persons do acts which together constitute a settlement then each of those persons shall be deemed to have effected a settlement notwithstanding that the acts performed by any one of those persons do not constitute a settlement.
(4) The fact that a payment, or a component of a price or fee, was not expressed, or was not acknowledged, to have been paid or received as commission or remuneration for any particular service, or was neither so expressed nor so acknowledged, shall not prevent that payment, or component of a price or fee, from being construed for the purposes of this Act as having been paid or received in respect of that service.
[Section 3 amended: No. 98 of 1985 s. 3; No. 59 of 1995 s. 58; No. 26 of 1999 s. 102(2); No. 65 of 2003 s. 66(2); No. 55 of 2004 s. 1081; No. 77 of 2006 Sch. 1 cl. 156(1); No. 21 of 2008 s. 704(2); No. 8 of 2009 s. 117; No. 46 of 2009 s. 15(2); No. 58 of 2010 s. 136 and 176; No. 9 of 2022 s. 424.]
4. Term used: settlement agent
(1) Exceptions to the meaning of settlement agent in and for the purposes of this Act are as follows —
(a) legal practitioners, when acting in the course of the practice of their profession as such; and
(aa) real estate agents and business agents, as
This is an opening excerpt, not the complete document.