Div 6AAgents' trust accounts

Division 6A—Agents' trust accounts 36A—Application of Division This Division applies where a strata corporation has authorised a person (the agent) (not being an ADI or other financial institution) to receive money from another person (not being the corporation) and to hold the money on behalf of the corporation or to deal with it in accordance with this Division. 36B—Interpretation In this Division, unless the contrary intention appears— agent means a person, not being an ADI or other financial institution, who has been authorised by a strata corporation to receive money on its behalf and to hold it or to deal with it in accordance with this Division; auditor means a registered company auditor within the meaning of the Corporations Law; financial institution means an institution of a kind declared by regulation to be a financial institution; trust account means an account in which trust money is required to be deposited by an agent; trust money means money received by an agent on behalf of a strata corporation. 36C—Trust money to be deposited in trust account (1) An agent must, as soon as practicable after receiving trust money, deposit the money in an account authorised by this Division in the name of the agent. (2) An agent must not pay any money except trust money into the agent's trust account. (3) An agent must not withdraw, or permit another person to withdraw, money from a trust account except in accordance with this Part. (4) An agent must, when applying to open a trust account, inform the ADI or other financial institution that the account is to be a trust account for the purposes of this Division. 36D—Withdrawal of money from trust account An agent may withdraw money from a trust account— (a) in exercise of powers delegated to the agent by the strata corporation; or (b) in satisfaction of a claim for fees, costs or disbursements (that are authorised by the regulations) that the agent has against the corporation; or (c) to satisfy an order of a court against the corporation; or (d) for making any other payment authorised by law. 36E—Authorised trust accounts An account at an ADI or at any other financial institution prescribed for the purposes of this section by regulation that provides for the payment of interest on money held in the account in accordance with the regulations is authorised for the purposes of this Division. 36F—Application of interest If money received by an agent on behalf of two or more strata corporations is held in the same trust account, interest credited to the trust account must be credited by the agent proportionately to the strata corporations on whose behalf that money is held. 36G—Keeping of records (1) An agent must keep detailed records of all trust money received by the agent and of any disbursement of, or other dealing with, that money and must compile detailed accounts of those receipts and disbursements or other dealings that— (a) accurately disclose the state of the trust account maintained by the agent; and (b) enable the receipt and disposition of trust money to be conveniently and properly audited; and (c) comply with all other requirements specified by regulation. (2) In particular, the agent must, in respect of the receipt of trust money— (a) make available to the person making payment a receipt that sets out the information specified by regulation in the form specified by regulation; and (b) make and retain a copy of the receipt as part of the agent's records. (3) An agent must, at the request of a strata corporation provide the corporation, within 5 business days after the making of the request, with a statement setting out details of dealings by the agent with the corporation's money. (4) An agent must keep the accounts and records referred to in this section (including copies of receipts under subsection (2)(b)) in a legible written form, or so as to be readily convertible into such a form, for at least five years. 36H—Audit of trust accounts (1) An agent who maintains a trust account must— (a) have the accounts and records kept under this Division audited by an auditor in respect of each audit period specified by regulation; and (b) forward to the secretary of the strata corporation a statement relating to the audit that sets out the information specified by regulation. (2) An agent who— (a) fails to have accounts and records audited as required; or (b) fails to forward the audit statement to the secretary of the strata corporation within the time allowed by or under the regulations, is guilty of an offence. 36I—Obtaining information for purposes of audit or examination (1) An auditor employed by an agent to make an audit of the trust accounts of the agent, may require the agent or any other person in a position to do so— (a) to produce all the accounts (including accounts that are not trust accounts) relating to the business of the agent and all documents and records relating to those accounts, including written records that reproduce in a readily understandable form information kept by computer, microfilm or other process; and (b) to provide any relevant information relating to the operation of the accounts. (2) The manager or other principal officer of an ADI or other financial institution with which an agent has deposited money, whether in his or her own account or in a general or separate trust account, must, on being required to do so by an auditor employed or appointed to make an audit under this Division, disclose every such account (including all deposit slips, cancelled cheques and other documents relating to the operation of the account) to the auditor. (3) A person who is required by this section to produce documents to an auditor must permit the auditor to make a copy of the whole, or any part, of those documents. (4) In this section— account includes a record required to be kept under this Division in relation to the receipt of and disbursement of or other dealing with trust money; agent includes a former agent. 36J—ADIs etc to report deficiencies in trust accounts An ADI or other financial institution with which a trust account has been established must, as soon as practicable, and in any event within 14 days, after becoming aware of a deficiency in that account, report the deficiency to the Minister. 36K—Confidentiality An auditor must not divulge information that has come to his or her knowledge in the course of performing functions under this Division except— (a) to the agent; or (b) to the Minister; or (c) as otherwise required by law. 36L—ADIs etc not affected by notice of trust (1) Subject to subsection (2), an ADI or other financial institution is not affected by notice of a specific trust to which money deposited in a trust account is subject, and is not bound to satisfy itself of the due application of that money. (2) This section does not relieve an ADI or other financial institution of liability for negligence. Division 7—Appointment of administrator 37—Administrator of strata corporation's affairs (a1) In this section— relevant court means the Court or the Magistrates Court. (1) A relevant court may, on application by— (a) a strata corporation; (b) a creditor of a strata corporation; (c) a person with a registered interest in a unit, appoint an administrator of the strata corporation, or remove or replace an administrator previously appointed. (2) An administrator has, while the appointment remains in force, full and exclusive power to administer the affairs of the strata corporation (including power to do anything for which a special or unanimous resolution of the strata corporation is required). (3) The administrator must comply with any directions that the relevant court may give from time to time. (4) The remuneration of an administrator will be fixed by the relevant court and payable from the strata corporation's funds. (5) The administrator may, by written instrument, delegate any of his or her powers. (6) A delegation under subsection (5)— (a) may be made on such conditions as the administrator thinks fit; and (b) is revocable at will; and (c) does not derogate from the power of the administrator to act in any matter personally. (7) Where a person— (a) is appointed as an administrator; or (b) is removed or replaced as an administrator, that person must, within 14 days, give the Registrar-General written notice of his or her appointment, removal or replacement. 38—Duties of the original proprietor in relation to strata corporation (1) The original registered proprietor must ensure that a general meeting of the strata corporation is convened within three months after the relevant date. (2) The relevant date is the first date on which there are two or more members of the corporation holding different units. (3) The original registered proprietor must, at the first general meeting of the strata corporation, place it in possession of— (b) a copy of all plans, drawings, specifications and reports in his or her possession relating to the design and construction of buildings and building improvements on the site; (c) a copy of any other notice, order or document in his or her possession relating to the strata scheme of which the strata corporation will need to know in order to carry out its statutory functions. 39—Power to require handing over of property (1) A strata corporation may by notice in writing to a person who has possession of any record, key, or other property of the corporation, require that person to deliver it to an officer of the corporation named in the notice on or before a specified time. (2) A person who fails to comply with a requirement under subsection (1) is guilty of an offence. 39A—Register of unit holders (1) A strata corporation must maintain a register of the names of the unit holders which shows— (a) the unit holder's last contact address, telephone number and email address known to the corporation; and (b) the unit holder's unit entitlement. (2) A corporation must keep a record of the information used to compile the register for the period required by the regulations. 40—Record keeping (1) A strata corporation must— (a) keep— (i) a minute book containing minutes of its meetings; and (ii) proper accounting records in respect of its receipts and expenditure; (b) ensure that a proper statement of accounts is prepared in respect of each accounting period; (c) keep a record of any notice or order served on the corporation; (d) retain for such period as may be prescribed— (i) the minute book and accounting records kept under paragraph (a); (ii) a copy of any statement of account prepared under paragraph (b); (iii) any notice or order referred to in paragraph (c); (iv) a copy of any correspondence received or sent by the corporation; (v) notices of meetings of the corporation and its management committee; (vi) such other documentary material as may be prescribed. (2) An accounting period for a strata corporation is— (a) a period— (i) commencing on the commencement of this Act, the date of incorporation of the corporation or the end of a previous accounting period (whichever is the later); and (ii) ending on the following 30 June; or (b) a period of not less than 9 months and not more than 18 months fixed by the corporation as an accounting period (but the corporation's accounting periods must be consecutive, following immediately one upon the other). 41—Information to be furnished (1) A strata corporation must, on application by or on behalf of the owner or a mortgagee of a unit, or by or on behalf of a prospective purchaser or mortgagee of a unit, within 5 business days after the making of the application— (a) furnish— (i) particulars of any contribution payable in relation to the unit (including details of any arrears of contribution related to the unit); (ii) particulars of the assets and liabilities of the corporation; (iii) particulars of any expenditure that the corporation has incurred, or has resolved to incur, and to which the unit holder of the unit must contribute, or is likely to be required to contribute; (iv) particulars in relation to any prescribed matter; (b) provide copies of— (i) the minutes of general meetings of the corporation and meetings of its management committee for such period, not exceeding two years, specified in the application; (ii) the statement of accounts of the corporation last prepared by the corporation; (iii) the articles for the time being in force; (iv) current policies of insurance taken out by the corporation; (c) make available for inspection— (i) a copy of the accounting records of the corporation; (ii) the minute books of the corporation; (iii) any other prescribed documentary material; (d) if the strata corporation is a party to a contract with a body corporate manager—make available for inspection a copy of the contract; (e) make available for inspection the register maintained under section 39A. Penalty: Division 9 fine. (1a) A strata corporation must, on application by a unit holder, provide the applicant, on a quarterly basis, with ADI statements for all accounts maintained by the corporation (and must continue to so provide the statements until the applicant ceases to be a unit holder or revokes the application). (1b) Subsection (1a) does not apply to a strata corporation if a body corporate manager maintains the accounts on behalf of the corporation. (2) An application under this section must be accompanied by the prescribed fee. (2a) A strata corporation must not charge more than the prescribed fee in respect of a service provided in pursuance of an application under this section. Penalty: Division 9 fine. (3) The application is duly made if given or sent to— (a) the secretary of the strata corporation; (b) if the strata corporation has a management committee—any member of the management committee. (4) A statement of a strata corporation provided for the purposes of subsection (1)(a) is, in favour of the person to whom it is provided and as against the corporation, conclusive evidence (as at the date of the statement) of the matters contained in the statement.