\ ne y +; AUDAX - AT: FIDELIS + Queensland Agents Financial Administration Bill 2010 Queensland Agents Financial Administration Bill 2010 Contents Page Part 1 Preliminary Division 1 Introduction 1 Shorttitle .... 2... eee eee 10 2 Commencement............. 000 0c cee 10 3 Act binds all persons ............ 0.000 c cece ee 10 4 Exemption—public officials... 0.2.0.0... 0.0... eee eee eee 10 Division 2 Object 5 Main object... 2.0.0... eee 11 Division 3 Interpretation 6 Definitions. ........ 0.0... eee 11 7 Meaning of in charge ............ 0.00. cece eee eee 11 Part 2 Trust accounts Division 1 Opening trust accounts 8 Trust account may only be opened at approved financial institution eee eee 12 9 Account's name... 2... eee eee 12 10 Notice of account's opening, closing or name change......... 13 Division 2 Payments to trust accounts 11 Application .. 0.00... 13 12 Dealing with amount on receipt .................0.000000- 14 13 Investments .. 2.0.0... ee 14 14 No other payments to trust account.................0...0. 15 15 Multiple licence holders ............ 00.00 c eee ee eee eee 15 16 Trust money not available to licensee's creditors............. 16 Division 3 Payments from trust accounts 17 When payments may be made from trust accounts........... 16 18 Permitted drawings from trust accounts...................- 16 Agents Financial Administration Bill 2010 Contents Division 4Division 5 Part 3 Division 1Division 2 Division 3 Part 4 Division 1Division 24143 Page 2 Other trust account obligations Accounting to clients ............ Duties of financial institution managers ...................- Disputes about trust money Application of div5.............. When amount in dispute may be paid Where amount must be paid if notice Dealing with amount if no notice ... Audit requirements Preliminary Definitions for pt3............... Provisions about auditors given............020.. Principal licensee must appoint auditor .................... Notice and evidence of auditor's appointment ............... Steps to be taken if auditor's appointment ends.............. Chief executive may make information available to supervisory bodies we eee eee eee Audit of trust accounts Definitions for div3.............. What trust accounts must be audited Time for audit.................. Auditors—functions ............. Auditor's advice to chief executive . . Auditor may ask licensee to produce other accounts.......... Audit on ceasing to be licensee or carrying on business ....... Audit reports................0.. Freezing trust accounts and appointing receivers and special investigators Definitions Definitions for pt4............... Freezing licensees' accounts Chief executive may freeze licensee's accounts in particular CASES ee eee Financial institution must comply with direction. ............. Person may ask QCAT to review chief executive's decision. .... Account not to be operated unless ch Chief executive may operate account ief executive allows ...... 19 2021 2225262728 3234 Agents Financial Administration Bill 2010 Contents 44 Withdrawal of direction... .....0.... 0.00... c eee eee eee 34 Division 3 Receivers Subdivision 1 Appointment 45 When receiver may be appointed.....................000. 35 46 Trust property over which receiver may be appointed ......... 36 47 Who may be appointed... .......... 0.00.2 36 48 How receivers are appointed ..................00 00 36 Subdivision 2 Receiver's functions and powers 49 Receivers—functions ... 0.0.2.0... 00... c eee eee eee eee 37 50 Requiring information............. 0.0.0 c eee eee 38 51 Possession of receivership property.................0.-00- 38 52 Orders for possession of receivership property .............. 39 53 Enforcing orders... 0.2.0... eee eee 39 54 Improperly withdrawing, destroying or concealing receivership Property ws eee eee eee 40 55 Dealing with receivership property..................0..0.0- 40 56 Obstructing receivers .... 2.0.0... eee ee eee 41 Subdivision 3 Distributing receivership property 57 Notice to claimants against receivership property ............ a1 58 Access to documents. ............. 0000 e cece eee eee eee 42 59 Deciding claims ......... 0.000. 42 60 Payment of claims ........... 0.00.0 cece eee eee ee 42 61 Money not dealt with by receiver ................02-.00200- 43 Subdivision 4 —__ Recovery of receivers' remuneration and costs 62 Recovery of remuneration and costs ...................00- 44 Subdivision 5 Ending receivership 63 Ending receiver's appointment.................0.-.000000- 45 64 Dealing with receivership property when appointment ends .... 45 65 Returns by receiver .... 00.00... ccc eee eee 46 Subdivision6 Miscellaneous 66 Receiver not personal representative...................0.0. 46 67 Receivership property free from execution or attachment ..... . 47 Division 4 Special investigators 68 Appointment of special investigator ..................0004. 47 69 Special investigators—functions..................00-0000- 47 70 Special investigators—powers .............. 0000.0 eee eee 48 Agents Financial Administration Bill 2010 Contents Part 5 Part 6 Part 7 Division 1Division 285 8890 Division 3929496 Page 4 Licensee must comply with special investigator's lawful requests eee eee eee Reports to chief executive ........... 0.000. Recovery of remuneration and costs ...................00- Ending special investigator's appointment.................. Jurisdiction of QCAT Jurisdiction... 2... eee eee Claim fund Claim fund ....... 0.0... How fund may be applied............. 0.0.0.0. 0 eee ee eee Agreements with financial institutions ..................... Claims against the fund Preliminary Definitions for pt 7.0.0.0... 0.0. What is the purchase of a non-investment residential property . . Making and dealing with claims General time limit for making claims.....................-. Time limit for making particular claims relating to marketeering contraventions and non-investment residential property ....... Time limit for a claim notified by receiver................... Making claims other than particular claims relating to marketeering contraventions and non-investment residential property) ow. eee Making particular claims relating to marketeering contraventions and non-investment residential property ....... Chief executive to give respondent notice of claim............ Corporation to give notices relating toclaim ................ Dealing with claims that have not settled................... Inspector may investigate claims and report and related documents may be referred to QCAT..................000. Minor claims Procedure for deciding minor claims ...................00- Amendment of claim. ..........0... 000020 c cee eee eee Respondent fails to respond toclaim...................... Deciding minor claims .............. 0.00.0 e eee eee eee Notifying decision... 0.2... 0... eee ee Party may ask QCAT to review chief executive's decision ...... 4849 5153 54 55 5758 606162 Division 4Division 5 Division 6 Division 7 Part 8 Division 1Division 2Division 3 Division 4Division 5 Part 9 Division 1 Agents Financial Administration Bill 2010 Contents Chief executive's decision binds the parties................. 62 Claims other than minor claims Deciding claims other than minor claims ................... 63 Deciding financial loss for non-investment residential property Application of div5......... 0.0... 64 General test for working out loss ..............00.002-0005 64 Adjustment for on-sale not at market value ................. 64 Payment of claims and liability of persons for payments from the fund Payment of claims ........... 0.0.0 e cece eee 65 Liability for payment from the fund...................0.00- 65 Limits on recovery from fund ............. 0.00.0 eee ee eee 66 Notice of other recovery. ... 0.2.0.2... 0. cee eee eee eee 67 Reimbursements to fund Recovery of payments—general .................--.00005- 68 Recovery of overpayments. ........... 0000. e eee eee eee 68 Proceedings generally Extending time QCAT may extend time..........00... 0.0022 eee eee 69 Proceedings involving a claim against the fund Chief executive may make submissions.................... 69 Application of QCAT Act, s 131 ......... 02... eee eee 70 Applications for reimbursement orders Application for reimbursement order ...............-00000. 70 Respondent to be advised of application for reimbursement Order eee ee eee 71 QCAT's orders Stopping contraventions............ 0.00.0 e eee eee 72 Orders QCAT may make on claim hearing.................. 72 Reimbursement orders. ..........002... 000000 c cece 73 When QCAT order takes effect.................02...0000. 73 Chief executive's right of appeal Appeal .... 0.0... eee eens 74 Injunctions and undertakings Injunctions Injunctions . 2... eee eee 74 Agents Financial Administration Bill 2010 Contents 120122Division 2125127Part 10 Division 1130Division 2133 Division 3135137 Part 11140142144 Page 6 Who may apply for injunction. ..................00 20000 Grounds for injunction ....... 0.0.0... c eee eee ee Court's powers for injunctions ................0 0.00200 eee Terms of injunction. .... 2.0.0... ee cee Undertakings as to costs ...........0... 000002... eee eee Undertakings Chief executive may seek undertaking after contravention ..... Undertaking about other matter...................0...... Variation and withdrawal of undertakings................... Enforcement of undertakings ..................00-00 ee eee Register of undertakings ............. 0.0.00 c eee eee eee General contraventions, evidentiary matters and legal proceedings General contraventions Offence to deal with trust account .....................00. False or misleading statements ..................-002000- False or misleading documents ................0--00-0005 Evidentiary matters Evidentiary provisions .............. 0.00. cece eee Entries in licensee's documents...................022200. Proceedings Proceedings for an offence............... 000 eee eee eee Responsibility for acts or omissions of representatives ........ Executive officers must ensure corporation complies with Act. . . Power of court ......... 0.000 e eee eee eee Allegations of false or misleading representations or statements CS) General Public warning statements ............... 0.00.00 c eee ee Civil remedies not affected............. 0.00.00. cee eee Criminal Proceeds Confiscation Act 2002 not limited.......... Delegation—chief executive........... 0.0... eee Approved forms ....... 0.0.00 c cece eee eee eee Review of Act... 0.2.0... ccc eeen ee Regulation-making power...............00 000 cee eee eee 757677788082 8486 878788 Agents Financial Administration Bill 2010 Contents Part 12 Transitional provisions 146 Definition for pt12 2.0.2... eee 89 147 Claim fund ....... 20.0... eee eee 89 148 Existing special investigators ..................00 000000 0- 90 149 Continuation of reviews under the repealed Act.............. 90 150 ProceedingS ... 1.2.0.0... cee eee eee eee ee 90 151 Injunctions relating to pre-commencement conduct........... 91 152 Undertakings relating to pre-commencement conduct......... 91 153 Continuation of register of undertakings. ................... 92 154 Existing approved financial institutions..................... 92 155 Existing agreements with financial institutions............... 92 156 Existing trust accounts ..... 0... .. 0.00. eee eee eee 92 157 Existing auditors... 2... 2 eee eee 93 158 New auditors .......... 0.0022 eee 93 159 Existing audits ......... 0.000.000. e eee eee eee 93 160 Existing disputes about trust money................2-.0-0. 93 161 Existing receivers... 0.2.00... 0. eee eee 94 162 Receivership property ......... 00.000. cece eee eee eee 94 163 Proceedings for offences under the repealed Act ............ 94 164 Existing delegations ........... 00.0... cece eee eee eee 95 Schedule Dictionary .............. 0.00.0... eee 96 Page 7 A Bill for An Act to provide for the administration of trust accounts held by particular agents licensed under an Agents Act, to establish a claim fund to compensate persons in particular circumstances for financial loss arising from dealings with agents, and for related purposes Agents Financial Administration Bill 2010 Part 1 Preliminary Is 1] The Parliament of Queensland enacts— Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Agents Financial Administration Act 2010. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Act binds all persons (1) This Act binds all persons, including the State, the legislative power of Parliament Commonwealth and the other States. and, so far as permits, the (2) Nothing in this Act makes the State, the Commonwealth or any other State liable to be prosecuted for an of 4 Exemption—public officials (1) This Act does not apply to a prescribed of fence. ficer for trust moneys for which the prescribed officer is responsible, if another Act makes provision for the way t he prescribed officer is required to deal with moneys held by the officer in trust. (2) In this section— prescribed officer means— Page 10 HnNWNn 1114 171922 Agents Financial Administration Bill 2010 Part 1 Preliminary [s 5] (a) an accountable officer under the Financial Accountability Act 2009; or (b) a public service officer. Division 2 Object 5 Main object (1) The main object of this Act is to protect consumers from financial loss in dealings with agents licensed under an Agents Act. (2) The object is to be achieved mainly by— (a) regulating the way agents establish, manage and audit trust accounts; and (b) establishing a claim fund to compensate persons in particular circumstances for financial loss arising from dealings with agents; and (c) promoting administrative efficiency for claims made against the claim fund. Division 3 Interpretation 6 Definitions The dictionary in the schedule defines particular words used in this Act. 7 Meaning of in charge (1) A person is in charge of a licensee's business at a place where the licensee carries on business only if the person personally supervises, manages or controls the conduct of the licensee's business at the place. (2) In this section— Page 11 — AarAID MN \o 11 1316 20 2325 Agents Financial Administration Bill 2010 Part 2 Trust accounts [s 8] Part 2 licensee's business means the licensee's business carried on under the authority of the licensee's licence. Trust accounts Division 1 Opening trust accounts Page 12 Trust account may only be opened at approved financial institution (1) (2) A licensee must not open a general trust account or special trust account at a place other than the office or branch of an approved financial institution within the State. Maximum penalty—200 penalty units. Note— A special trust account is a trust account created under section 13 in which an amount is held for investment at the direction of both parties to a sale. Before opening the account, the licensee must give the manager or other officer in charge of the institution's office or branch a copy of the licensee's licence. Maximum penalty for subsection (2)—200 penalty units. Account's name (1) (2) The licensee opening a general trust account must ensure that the account's name includes the words 'trust account'. Maximum penalty—200 penalty units. The licensee opening a special trust account must ensure that the account's name includes the words 'special trust account'. Maximum penalty—200 penalty units. Omrn aN 131621 24 Agents Financial Administration Bill 2010 Part 2 Trust accounts [s 10] 10 Notice of account's opening, closing or name change (1) (2) (3) This section applies if a licensee does any of the following (each an event)— (a) opens a general trust account or special trust account; (b) changes the name of a general trust account or special trust account; (c) closes a general trust account or special trust account. The licensee must, under subsection (3), give the chief executive written notice of the happening of the event within 14 days of its happening. Maximum penalty—200 penalty units. The written notice must state— (a) whether the account is a general trust account or special trust account; and (b) the name of the financial institution where the account is or was kept; and (c) the account name; and (d) _ the identifying number of the financial institution; and Editor's note— This is commonly referred to as the bank state branch number. (e) the account number. Division 2 Payments to trust accounts 11 Application (1) Sections 12 and 13 apply if an amount is received by a licensee— (a) for a transaction; or (b) with a written direction for its use. Page 13 Om NY DAN BP WN no NF Oo alan KW rR HnNWNn Rw NP eB Se SOON 25 27 Agents Financial Administration Bill 2010 Part 2 Trust accounts [s 12] Example of paragraph (b)— an amount received by a property agent with a written direction to use it for advertising or marketing by the agent or another person (2) In this section— amount, received by a licensee for a transaction— (a) includes deposit and purchase monies for the transaction; but (b) does not include an amount payable to the licensee for the transaction in refund of an expense the licensee was authorised to incur and did incur and for which the licensee holds a receipt. 12 Dealing with amount on receipt A licensee must, immediately on receiving the amount— (a) pay it to the licensee's general trust account; or (b) if section 13(1) applies, invest it under section 13(2). Example of paragraph (a)— A licensee who collects an amount of rent for a property owner must pay the amount to the licensee's general trust account before the money can be paid to the owner. Maximum penalty—200 penalty units or 2 years imprisonment. 13 Investments (1) A licensee may invest the amount under subsection (2) if— (a) _ the licensee receives the amount for a sale; and (b) _ the sale is to be completed on a day that is— (i) stated in the contract or ascertainable on the day the contract is entered into; and (ii) more than 60 days after the amount is received; and Page 14 OND NM BWN eR Oo NRO 1417 1922 2426 28 30 (2) Agents Financial Administration Bill 2010 Part 2 Trust accounts [s 14] (c) the amount is received with a direction from all parties to the sale that it be invested. The licensee must pay the amount as required by the direction to a special trust account with a branch of a financial institution within the State operated for the investment of the amount. Maximum penalty for subsection (2)—200 penalty units or 2 years imprisonment. No other payments to trust account (1) (2) A licensee must not pay to a trust account an amount other than an amount that must be paid to the account under section 12 or 13. Maximum penalty—200 penalty units or 1 _ year's imprisonment. However, if the licensee receives an amount consisting of trust money and other money (the non-trust money) that can not be divided, the licensee must— (a) pay the whole amount to the licensee's general trust account; and (b) draw the non-trust money from the account within 14 days after the money becomes available for drawing. Example of amount consisting of trust money and non-trust money— A property agent receives a single cheque for rent and services provided by the licensee, including, for example, television rental. Maximum penalty—200 penalty units or 1 _ year's imprisonment. Multiple licence holders A licensee who holds more than | licence is not required to keep a general trust account for each licence. Page 15 CN DAUNBW NK 1114 1619 21 24 26 29 Agents Financial Administration Bill 2010 Part 2 Trust accounts [s 16] 16 Trust money not available to licensee's creditors An amount paid, or required to be paid, to a trust account under this division can not be— (a) used for payment of the debt of a creditor of a licensee; or (b) attached or taken in execution under a court order or process by a creditor. Division 3 Payments from trust accounts 17 When payments may be made from trust accounts (1) An amount paid to a trust account must be kept in the account until it is paid out under this Act. Maximum penalty—200 penalty units or 2 _ years imprisonment. (2) An amount may be paid from a trust account only in a way permitted under this Act. Maximum penalty—200 penalty units or 2 _ years imprisonment. 18 Permitted drawings from trust accounts Page 16 (1) (2) A licensee may draw an amount from the licensee's trust account to pay the licensee's transaction fee or transaction expenses for a transaction only if— (a) the amount is drawn against the transaction fund for the transaction; and (b) _ the licensee is authorised to draw the amount under this section. Maximum penalty—200 penalty units or 2 _ years imprisonment. The licensee is authorised— AD ABR WN 11 13 15 17 2023 25 27 (3) (4) (5) Agents Financial Administration Bill 2010 Part 2 Trust accounts [s 18] (a) to draw an amount from the transaction fund to pay a transaction expense when the expense becomes payable; and (b) when the transaction is finalised, to draw an amount from the transaction fund that is equal to the difference between— (i) _ the balance of the transaction fund; and (ii) the total of the licensee's transaction fee and any outstanding transaction expense; to pay the person entitled to the amount or in accordance with the person's written direction; and Example of when transaction is finalised— the settlement of a contract for the sale of property or the termination of the contract (c) to draw the licensee's transaction fee from the transaction fund when the amount, if any, mentioned in paragraph (b) has been paid and when the transaction is finalised. For subsection (2)(b) or (c), if a dispute about the transaction fund arises, the transaction is not taken to be finalised until the licensee is authorised to pay out the transaction fund under section 22. The licensee must pay an amount mentioned in subsection (2)(b) to the person entitled to it or in accordance with the person's written direction— (a) if the person asks, in writing, for the balance—within 14 days after receiving the request; or (b) if the person has not asked, in writing, for the balance—within 42 days after the person first had the right to the balance. Maximum penalty—200 penalty units or 2 years imprisonment. In this section— Page 17 eom NY DWNHBR WNKe ee a) = N alent RW coeliledii sail an! aearnan NNNY NReow NNN Nn B&B LW NN NO WNN cowoon W WwW Ne uw w Agents Financial Administration Bill 2010 Part 2 Trust accounts [s 19] transaction expenses means the expenses the licensee is authorised to incur in connection with the performance of the licensee's activities for a transaction. transaction fee means the fees, charges and commission payable for the performance of the licensee's activities for a transaction. transaction fund means the amount held in a licensee's trust account for the transaction. Division 4 Other trust account obligations 19 Accounting to clients Page 18 (1) (2) (3) A licensee must account as required under this section to the person (client) who appoints the licensee to perform an activity for all amounts received for a transaction, including an amount mentioned in subsection (2)(c). Maximum penalty—200 penalty units or 2 years imprisonment. The account must be in writing and state— (a) the amounts received for the transaction; and (b) how the amounts were or are to be paid out; and (c) the source and the amount of any rebate, discount, commission or benefit that the licensee recerved— (i) for any expenses that the licensee incurred for the client in connection with the performance of a service; or (ii) for referring the client to someone else for services relating to the transaction. The licensee must give the client the account— (a) if the client asks, in writing, for the account—within 14 days after receiving the request; or CN ADUNBR WNKe 1214 16 1821 2326 29 Agents Financial Administration Bill 2010 Part 2 Trust accounts [s 20] (b) if the client has not asked, in writing, for the account—within 42 days after the transaction is finalised. 20 Duties of financial institution managers (1) (2) The manager or principal officer of an office or branch of a financial institution where trust money has been deposited, whether to a trust account or another account, must— (a) allow an inspector, on written demand signed by the inspector, to inspect and copy any documents relating to the account; and (b) immediately a licensee's trust account is overdrawn, inform the chief executive of that fact; and (c) immediately there is insufficient money in a licensee's trust account to meet a cheque drawn on the account, inform the chief executive of— (i) | the amount for which the cheque is drawn; and (ii) the amount in the account. Maximum penalty—200 penalty units or 1 _ year's imprisonment. In this section— licensee includes— (a) a former licensee; and (b) aperson who is not licensed, but who acts as a licensee. trust money includes— (a) an amount that, under section 12, is required to be deposited to a licensee's trust account; and (b) an instrument for the payment of an amount mentioned in paragraph (a) if the instrument may be paid into a financial institution; and (c) a security for an amount mentioned in paragraph (a) if title to the security is transferable by delivery. Page 19 WN COD NDN FL 12 1417 19 212326 2831 Agents Financial Administration Bill 2010 Part 2 Trust accounts [s 21] Division 5 Disputes about trust money 21 Application of div 5 (1) This division applies 1f— (a) a licensee holds a transaction fund for a transaction under section 18; and (b) before the transaction fund is paid out under section 18, the licensee receives written notice from a party to the transaction that ownership of the fund or part of the fund is in dispute (the amount in dispute). (2) Insubsection (1)— party, to a transaction, does not include a licensee acting for a party to the transaction. 22 When amount in dispute may be paid The licensee must not pay out the amount in dispute unless the licensee— (a) receives written notice— (i) from all parties to the transaction stating the person who is entitled to the amount in dispute; or (i1) a legal proceeding has been started in a court to decide who is entitled to the amount in dispute; or (b) pays the amount under section 24(3). Maximum penalty—200 penalty units or 2 _ years imprisonment. 23 Where amount must be paid if notice given The licensee must pay the amount in dispute immediately— (a) if notice under section 22(a)(i) is received—to the person stated to be entitled to the amount or in accordance with the person's direction; or Page 20 OMAND NAH W WN — Co aon NR 15 18 20 23 25 27 Agents Financial Administration Bill 2010 Part 2 Trust accounts [s 24] (b) if notice under section 22(a)(ii) is received—to the court in which the proceeding was started. Maximum penalty—200 penalty units or 2 years imprisonment. 24 Dealing with amount if no notice (1) (2) (3) This section applies if the licensee does not receive a notice under section 22 within 30 days after receiving notice of the dispute. The licensee must, within 7 days after the end of the 30 day period, give all parties to the transaction a written notice that— (a) 30 days after the notice is given, the licensee will pay the amount in dispute to a stated person whom the licensee believes is entitled to receive it if the licensee has not received a notice under section 22; or (b) _ the licensee can not decide who is entitled to the amount and is keeping it in the licensee's trust account until the licensee receives notice under section 22. Maximum penalty—200 penalty units or 2 years imprisonment. If the licensee gives a notice under subsection (2)(a), the licensee may pay the amount to the person stated in the notice if the licensee does not receive a notice under section 22 within 30 days after the notice under subsection (2)(a) is given. Page 21 RW NR AarAID MN \o 11 1315 1720 2224 Agents Financial Administration Bill 2010 Part 3 Audit requirements [s 25] Part 3 Audit requirements Division 1 Preliminary 25 Definitions for pt 3 In this part— auditor means a person who is— (a) registered as an auditor under the Corporations Act; or Note— See the Corporations Act, section 1274AA (Register of disqualified company directors and other officers). (b) a member of CPA Australia who is entitled to use the letters 'CPA' or 'FCPA'; or (c) amember of The Institute of Chartered Accountants in Australia who is entitled to use the letters 'CA' or 'FCA'; or (d) amember of the National Institute of Accountants who is entitled to use the letters 'MNIA', 'FNIA', 'PNA' or 'FPNA'. Division 2 Provisions about auditors 26 Principal licensee must appoint auditor A principal licensee who is required under this Act to keep a trust account must appoint an auditor to audit the trust accounts kept or to be kept by the licensee under this Act. Maximum penalty—200 penalty units or 1 year's imprisonment. 27 Notice and evidence of auditor's appointment (1) This section applies if— Page 22 Com nt nD un BW 11 13162124 26 (2) Agents Financial Administration Bill 2010 Part 3 Audit requirements [s 28] (a) aprincipal licensee appoints an auditor; and (b) _ the licensee has not already advised the chief executive of the auditor's name and address under any of the following provisions— (i) Commercial Agents Act 2010, section 14; (ii) Property Agents Act 2010, section 24; (ii) Motor Dealers and Chattel Auctioneers Act 2010, section 18. The licensee must, within | month after the appointment, give the chief executive— (a) written notice of the auditor's name and address; and (b) evidence that the auditor has accepted the appointment. Maximum penalty—200 penalty units. Steps to be taken if auditor's appointment ends (1) (2) (3) If a licensee's auditor resigns or the licensee ends the auditor's appointment, both the auditor and the licensee must immediately notify the chief executive of— (a) _ the resignation or ending of the appointment; and (b) _ the reasons for it. An auditor or licensee who is required to give the chief executive notice under subsection (1) and fails to give the notice commits an offence. Maximum penalty—200 penalty units. The licensee must appoint another auditor and, unless the licensee has a reasonable excuse, within 1 month after the resignation or ending of the appointment mentioned in subsection (1) takes effect, give the chief executive— (a) written notice of the auditor's name and address; and (b) evidence that the auditor has accepted the appointment. Maximum penalty—200 penalty units. Page 23 COND nN BWN - Oo co Se ee WN 1619 212527 29 Agents Financial Administration Bill 2010 Part 3 Audit requirements [s 29] (4) Ifa licensee's auditor dies, the licensee must— (a) as soon as the licensee becomes aware of the death, notify the chief executive of the death; and (b) unless the licensee has a reasonable excuse, within 1 month after becoming aware of the death, appoint another auditor and give the chief executive— (i) written notice of the auditor's name and address; and (ii) evidence that the auditor has accepted the appointment. Maximum penalty—200 penalty units. 29 Chief executive may make information available to supervisory bodies (1) The chief executive may report a matter about an auditor to ASIC or a prescribed entity of which the auditor is a member if the chief executive believes, on reasonable grounds, that the auditor— (a) _ has not audited a licensee's trust accounts in accordance with generally accepted standards of professional competency; or (b) _ has failed to detect or report material irregularities in the operation of a licensee's trust accounts; or (c) _ has not properly performed the auditor's functions under this Act. (2) The chief executive may make any information in the chief executive's possession available to the commission or entity for any investigation conducted by the commission or entity. (3) In this section— prescribed entity means CPA Australia, the Institute of Chartered Accountants in Australia or the National Institute of Accountants. Page 24 = 5° CrNI DAN WN 13 1517 1922 24 2630 Agents Financial Administration Bill 2010 Part 3 Audit requirements [s 30] Division 3 Audit of trust accounts 30 Definitions for div 3 In this division— audit month, for a licensee's licence, means— (a) the eighth month after the month in which the licence was first issued to the licensee and the same month in each subsequent year; or (b) another month stated by the chief executive in a written notice given to the licensee. Example of paragraph (a)— If a licensee's licence was first issued to the licensee in January, the audit month for the licensee's licence is September. audit period means— (a) the 12 month period in each year ending on the last day of the audit month; or (b) another period decided by the chief executive, either generally, by gazette notice, or by written notice given to a licensee. audit report, for a licensee, means a report from the licensee's auditor under section 37. trust account means a general trust account or a special trust account. 31 What trust accounts must be audited (1) (2) A licensee's trust accounts must be audited for each audit period for which the licensee carried on business as a licensee and operated a trust account. A licensee's trust accounts need not be audited for an audit period if the licensee gives the chief executive a statutory declaration that the licensee did not operate a trust account during the period. Page 25 Om ANDNDM HP WW WN — Co — NR — Ww ——— ns RR ana NR ow NN NR 252830 Agents Financial Administration Bill 2010 Part 3 Audit requirements [s 32] 32 Time for audit Page 26 (1) (2) (3) (4) (5) This section applies to each audit period for which a licensee's trust accounts must be audited. The licensee must, within 4 months after the last day of the audit month in each year or the extended period allowed by the chief executive under subsection (3)— (a) have the licensee's trust accounts for the last audit period audited by the licensee's auditor; and (b) file the auditor's signed original audit report with the chief executive. Maximum penalty—200 penalty units or 2 years imprisonment. Note— The auditor must give the licensee a signed original audit report under section 37 (Audit reports). The chief executive may extend the time mentioned in subsection (2) if an auditor or licensee applies in writing to the chief executive for the extension. The application must state the grounds on which the extension is sought. If a licensee is charged with an offence relating to a failure to file an audit report, it does not matter that the contravention happened without the licensee's authority or contrary to the licensee's instructions. Auditors—functions (1) An auditor has the following functions under this division— (a) to inspect and audit, in each audit period, the trust accounts of each licensee by whom the auditor is engaged; (b) to make an audit report for the licensee for the audit period; ON ANB WN - Oo oO aon NR — Ww — np RR ana NR ow NNNNY BRWNR 26 2831 (2) Agents Financial Administration Bill 2010 Part 3 Audit requirements [s 34] (c) if the licensee is a licensee for the whole of the audit period—to make 2 unannounced examinations of the licensee's trust accounts during the audit period; (d) if the licensee is a licensee for less than the whole audit period, but more than 6 months of the period—to make 1 unannounced examination of the licensee's trust accounts during the audit period. An auditor must not make an unannounced examination of a licensee's trust accounts within 2 months after the last day of the audit period or another unannounced examination. 34 Auditor's advice to chief executive An auditor must immediately give written notice to the chief executive if the auditor— (a) can not report that a trust account has been satisfactorily kept under this Act; or (b) finds, on an unannounced examination of a licensee's trust accounts, an irregularity relating to an account that ought to be brought to the chief executive's notice. Maximum penalty—200 penalty units or 1 _ year's imprisonment. 35 Auditor may ask licensee to produce other accounts (1) (2) (3) This section applies if an auditor considers, to enable the auditor to decide whether a licensee's trust accounts have been satisfactorily kept under this Act, it is necessary— (a) to examine a general account of the licensee; or (b) _ to be given information about the accounts. The auditor may ask the licensee to produce the general account or give the information. If the licensee refuses, the auditor must immediately give written notice to the chief executive. Page 27 FP OoMmo NDWNBR WNe Co 13 15 1720 2326 28 30 Agents Financial Administration Bill 2010 Part 3 Audit requirements [s 36] Page 28 Maximum penalty for subsection (3)—200 penalty units or 1 year's imprisonment. Audit on ceasing to be licensee or carrying on business (1) This section applies if— (a) a licensee must keep trust accounts; and (b) _ the licensee stops being a principal licensee. (2) The licensee must, within 2 months after the licensee stops being a principal licensee— (a) have the licensee's trust accounts audited by the licensee's auditor for the period— (i) _ starting on the day immediately after the end of the period covered by the last audit of the trust accounts or, if the trust accounts have not previously been audited, the day on which the icensee was first required to keep trust accounts; and (ii) ending on the day the licensee stops being a principal licensee; and (b) file the auditor's signed original audit report with the chief executive. Maximum penalty—200 penalty units or 2 years imprisonment. Audit reports (1) An auditor who audits a licensee's trust accounts must give the licensee an original signed audit report under this section. Maximum penalty—200 penalty units or 1 _ year's imprisonment. (2) The auditor must include the following in the report— (a) _ the audit period for which the report is made; (b) the name and number of each trust account audited; COND Nn BW 121416 18 20 22 25 27 29 (d) (e) (f) (g) (h) (1) G) (k) (I) Agents Financial Administration Bill 2010 Part 3 Audit requirements [s 37] the name of the financial institution, the office or branch of the institution where each trust account was kept and the identifying number of the office or branch; the licensee's name and— (i) _ if the licensee is a corporation—the name of each licensed person in charge of the corporation's business for the audit period; and (ii) if the licensee carried on business under a registered business name—the business name and the names of any persons with whom the licensee carried on the business; each place where the licensee carried on business as a licensee; a statement about whether each trust account has been satisfactorily kept under this Act; a statement specifying the day and result of each unannounced examination for the audit period under section 33(1); a statement about whether the auditor has audited the licensee's general account; a statement about whether any trust account has been overdrawn; a statement about whether a trust creditor's ledger account has been overdrawn; a statement about whether, for each month during the audit period— (i) each trust account cash book was reconciled with the bank balance and trust ledger; and (ii) an analysis was made showing the name of each person for whom an amount was held and the amount held for each person; the serial numbers of the trust receipts used during the audit period and the unused trust receipts produced to the auditor; Page 29 OM NDMN BP WNeK ee re oO ailend Wh —— ns RRR ona Nr ow NN NR NN KRW NN nn NN on WwWN row WW WwW BRwWN Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 38] (m) particulars of the amounts held in trust for more than 3 months by the licensee at the last day of the audit period; (n) a statement that each trust account cash book has been reconciled with the bank balance of the trust account at the last day of the audit period; (0) a copy of the reconciliation of the trust account cash book and the bank balance of the trust account at the last day of the audit period; (p) astatement about anything else about any trust account audited that the auditor considers should be reported to the chief executive. Part 4 Freezing trust accounts and appointing receivers and special investigators Division 1 Definitions 38 Definitions for pt 4 In this part— account means— (a) a trust account in a licensee's name with a financial institution; or (b) an account in the licensee's name or in which the licensee has an interest with a financial institution; or (c) another account to which trust money is deposited. Page 30 defalcation means stealing, embezzlement, omitting to account, misappropriation or misapplication, or other act about property punishable by imprisonment. OmNI ANB WNRE —— NRO 141821 23 26 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 38] holder, of an account, means the licensee or other person authorised to operate on the account. licensee includes a former licensee and the personal representative of a deceased licensee. money includes— (a) an instrument for the payment of an amount if the instrument may be paid to a financial institution; and (b) security for money if title to the security is transferable by delivery. receivership property, for a receiver, has the meaning given by section 48(2). trust money includes an amount that was, or ought, under this Act, to have been, deposited in a trust account required to be kept by a licensee. trust property, for a licensee— (a) means— (i) property received by the licensee in trust that has not been given to the person entitled to it or someone else under the person's direction or according to law; or (il) property that, except for the appointment of a receiver, would be receivable for another person by the licensee in trust after the receiver's appointment; or (ii1) trust money; and (b) includes computer hardware, software and discs, ledgers, books of account, vouchers, records, deeds, files and other documents used in connection with something mentioned in paragraph (a). Page 31 Com ND MN BPW NK ee a) elated BRWN re eR nN Nee Som Nn NNNN BRWNR N nN NNNN Cana Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 39] Division 2 Freezing licensees' accounts 39 Chief executive may freeze licensee's accounts in particular cases (1) The chief executive may decide to give a direction under subsection (2) if it appears to the chief executive that any of the following persons has, or may have, stolen or misappropriated or misapplied trust money— (a) a licensee; (b) _ the person in charge of a licensee's business at a place; (c) an employee of a licensee. (2) The chief executive may direct, by signed writing, that— (a) if a claim has been made against the fund for the trust money, all or part of the amount to the credit of a stated account be paid to the chief executive; or (b) an amount must not be drawn from a stated account other than with the chief executive's written approval; or (c) a stated account may be operated only under stated conditions. (3) The direction must— (a) _ be given to each holder of the account and the financial institution where the account is kept; and (b) — state the account to which it relates; and (c) if it includes a direction under subsection (2)(c), state the conditions under which the account may be operated. (4) If an amount is paid to the chief executive under subsection (2)(a), the chief executive must pay the amount to the fund. 40 Financial institution must comply with direction (1) After the direction has been given to a financial institution, and until it is withdrawn, the financial institution must not— Page 32 Cc WADNAH WH 1316 18 21 2427 30 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators (2) (3) (4) (5) [s 41] (a) pay a cheque or other instrument drawn on the account stated in the direction unless the cheque or instrument is also signed by the chief executive; or (b) give effect to another transaction on the account that is not authorised because of the direction. Maximum penalty— (a) for an individual guilty of an offence under chapter 2 of the Criminal Code—200 penalty units or 1 year's imprisonment; or (b) for a corporation—1000 penalty units. Subsection (1) applies whether or not a copy of the direction has been given to anyone else. For section 39(2)(b), the chief executive's signature on the cheque or other instrument is sufficient evidence of the chief executive's approval to draw an amount from the account to honour the cheque or other instrument. A manager or principal officer in charge of an office or branch of the financial institution where the account is kept, or another officer of the financial institution, must not knowingly contravene this section. Maximum penalty—200 penalty units or 1 _ year's imprisonment. A person to whom a direction is given does not incur a civil liability to another only because the person complies with the direction. Person may ask QCAT to review chief executive's decision (1) (2) A person who is dissatisfied with a decision of the chief executive made under section 39(1) may apply to QCAT to have the decision reviewed. QCAT may not stay the operation of the decision under the QCAT Act, section 22(3). Page 33 OMANI D NP WNK — Co ao NR coal eeaiiientil and DunhwW Nee Som Nn NN NR NNN Nn B&B LW 27 2932 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 42] Page 34 Account not to be operated unless chief executive allows After the direction has been given to the holder of an account, and until it is withdrawn, the holder must not sign a cheque or other instrument drawn on an account stated in the direction unless the cheque or other instrument has first been signed by the chief executive or a person authorised by the chief executive to sign the cheque or instrument. Maximum penalty—200 penalty units or 2 years imprisonment. Chief executive may operate account (1) (2) (3) This section applies if a holder of an account is unwilling to operate an account stated in a direction under section 39. The chief executive or a person authorised in writing by the chief executive (an authorised person) may operate on the account. A statutory declaration made by the chief executive or authorised person to the effect that the account holder is unwilling to operate on the account is sufficient evidence to the licensee's financial institution of that fact. Withdrawal of direction (1) (2) (3) The chief executive may withdraw a direction given under section 39 at any time. If the direction is withdrawn, the chief executive must immediately give all persons who were given the direction a notice that the direction has been withdrawn. A direction stops having effect when it is withdrawn. OM ADMABWNY 12 141719 22 24 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 45] Division 3 Receivers Subdivision 1 Appointment When receiver may be appointed (1) (2) If the chief executive believes, on reasonable grounds, a defalcation has, or may have, been committed in relation to a licensee's trust account, the chief executive may appoint a receiver if— (a) _ the licensee consents to the appointment; or (b) _ the chief executive— (i) _ gives the licensee written notice— (A) | stating that the chief executive proposes to appoint a receiver on the ground that a defalcation has, or may have, been committed in relation to the licensee's trust account; and (B) outlining the facts and _ circumstances forming the basis for the ground; and (C) inviting the licensee to show, within a stated time of at least 21 days, why the appointment should not be made; and (ii) after considering any written representations given within the stated time, still considers the ground exists. Note— Under the Judicial Review Act 1991, part 4, a person aggrieved by an administrative decision of the chief executive can ask the chief executive to give a written statement of reasons for the decision, if they are not given. See the Acts Interpretation Act 1954, section 27B (Content of statement of reasons for decision) for what the chief executive must set out in the reasons. The chief executive may immediately appoint a receiver if the chief executive believes, on reasonable grounds, a person can Page 35 0 DO ADNH W 1315 17 1922 25,272932 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 46] Page 36 not obtain payment or delivery of trust property held for the person by a licensee because of— (a) (b) (c) (d) (e) (f) (g) the licensee's mental or physical infirmity; or the licensee's death; or the abandonment of the licensee's business; or the licensee's disqualification from holding a licence; or the cancellation or suspension of the licensee's licence; or a refusal to renew the licensee's licence; or the expiry of the licensee's licence. Trust property over which receiver may be appointed A receiver may be appointed over trust property— (a) (b) (c) (d) held by a licensee; or held by another person for a licensee; or recoverable by a licensee; or if a licensee is dead, that may be recoverable by the licensee's personal representative. Who may be appointed (1) The chief executive may appoint a person as a receiver only if satisfied the person is appropriately qualified to perform a receiver's functions. (2) A person may be appointed as a receiver and a special investigator over the same trust property. Note— See section 68 (Appointment of special investigator). How receivers are appointed (1) The chief executive must appoint a receiver by signed notice. CO OND WN FW NK 121417 2023 25 27 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 49] (2) The notice must state the trust property (receivership property) over which the receiver is appointed. (3) The appointment takes effect when the notice is signed. (4) The chief executive must give a copy of the notice to the licensee and the receiver as soon as practicable after the signing of the notice. (5) Ifthe licensee is a corporation, the licensee must give notice of the appointment to each person who was an executive officer of the corporation at the time the event giving rise to the appointment happened, unless the licensee has a reasonable excuse. Maximum penalty for subsection (5)— (a) for an individual guilty of an offence under chapter 2 of the Criminal Code or for section 136—100 penalty units; or (b) for a corporation—500 penalty units. Subdivision 2 Receiver's functions and powers 49 Receivers—functions A receiver appointed under this division has the following functions— (a) _ to take possession of receivership property; (b) to manage receivership property; (c) to receive claims against receivership property; (d) if the licensee held receivership property in trust— (i) _ to identify the person or persons who have the right to it; and (ii) to distribute it under this division; Page 37 COMPANY DAUNHB WW NK ee a) = N epee Nn B&B WD — a 20 2224 26 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 50] Page 38 (e) to identify any defalcation that has, or may have, been committed; (f) to report to the chief executive about a receivership. Requiring information (1) (2) (3) A receiver may ask a person to give the receiver information the receiver reasonably requires about receivership property. A person must give the receiver the information, unless the person has a reasonable excuse. Maximum penalty—200 penalty units or 1 _ year's imprisonment. It is a reasonable excuse for a person not to give information to a receiver if doing so might tend to incriminate the person. Possession of receivership property (1) (2) (3) (4) (5) A receiver may take or enter into possession of receivership property. As soon as practicable after taking or entering into possession of receivership property, the receiver must give a receipt for it to the person from whom the property was taken or who held possession of the property. The receiver must allow a person who would be entitled to the receivership property if it were not in the receiver's possession— (a) to inspect it; or (b) if it is a document, to take a copy of it. The receiver must return receivership property that the receiver is satisfied is not required for the receivership to the licensee or other person who has the right to it. The receiver may take or enter into possession of receivership property under subsection (1) despite a lien or other security over it claimed by any person. — w On AN ff 12 15 1719 2124 2629 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators (6) [s 52] However, the taking or entry into possession does not affect the person's claim to the lien or other security against a person other than the receiver. Orders for possession of receivership property (1) (2) (3) This section applies if— (a) areceiver requires a person in possession of receivership property to give possession of it to the receiver; and (b) _ the person does not comply with the requirement. The receiver may apply to a court having jurisdiction for the recovery of debts up to the amount or value of the receivership property for an order for possession of the property. On the application, the court may make any order it considers appropriate. Enforcing orders (1) (2) (3) This section applies if— (a) acourt makes an order under section 52 for possession of receivership property against a person; and (b) _ the person has been given a copy of the order; and (c) | the person has not complied with the order. The court may make an order authorising a police officer, or the receiver or another person and a police officer— (a) to enter stated premises or another place occupied by the person and search for the receivership property; and (b) _ to seize the receivership property and move it to a place the receiver considers appropriate. The court may also make another order it considers appropriate. Page 39 WNre OoAND NW 1114 16 18 20 22 24 26 28 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 54] Page 40 Improperly withdrawing, destroying or concealing receivership property A person must not— (a) (b) withdraw an amount or make a payment from an account with intent to defeat a receiver's functions; or destroy, conceal, move from 1 place to another place, give to another or place under another's control receivership property over which a receiver has been appointed. Maximum penalty—200 penalty units or 2 years imprisonment. Dealing with receivership property (1) A receiver may deal with receivership property in the same way as the licensee may have lawfully dealt with the property. (2) Without limiting subsection (1), the receiver may do the following— (a) if the licensee had no general trust account, open a general trust account; (b) claim or receive a debt owing to the licensee in connection with the receivership property; (c) _ start or defend a proceeding concerning the receivership property for the licensee; (d) engage a legal representative or other agent to give advice; (e) engage employees or agents to help the receiver carry out the receiver's functions; (f) if the licensee had power to sell or require the sale of the receivership property, sell or require the sale of the property. Ree OAND WHR W NK re Oo 14 16 18 20 22 24 26 28 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 56] 56 Obstructing receivers A person must not obstruct a receiver in the performance of the receiver's functions or the exercise of the receiver's powers under this subdivision. Maximum penalty—200 penalty units or 1 _ year's imprisonment. Subdivision 3 Distributing receivership property 57 Notice to claimants against receivership property (1) (2) (3) (4) The receiver must give notice to persons who may have a claim against receivership property. The notice may be given— (a) _ by post; or (b) by newspaper advertisement; or (c) in another way the receiver reasonably thinks will bring the notice to the attention of persons who may have a claim to the receivership property. A notice must state a time, at least 1 month after the notice is given, for particulars and grounds of a claim against the receivership property to be given to the receiver. The claim must state— (a) _ the event alleged to give rise to the claim; and (b) when the event happened; and (c) if the claimant was not immediately aware that the claimant suffered financial loss because of the event, when the claimant became aware of the financial loss; and (d) all relevant particulars about the event and the financial loss; and (e) the claimant's estimated financial loss. Page 41 Dn BWN 1113 1518212426 28 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 58] Page 42 (5) (6) A claim is taken to have been made on the day the claim is given to the receiver even though the claimant is unable to state all of the particulars mentioned in subsection (4). The receiver may require the claimant to verify the claim, or part of the claim. Example of verification— statutory declaration Access to documents (1) (2) The receiver must give a person who wishes to claim against receivership property reasonable access to documents held by the receiver to allow particulars and grounds of the claim to be given. The receiver must give the access free of charge. Deciding claims (1) (2) (3) (4) The receiver must consider all claims against receivership property and decide whether each claim is allowable. The receiver may refuse to allow a person's claim against the receivership property if— (a) _ the person was given notice under section 57; and (b) particulars and grounds of the claim were not given within the time stated in the notice. The receiver must refuse to allow a person's claim against the receivership property if the receiver is satisfied that the person does not have a lawful claim against the property. If the receiver refuses a claim under subsection (2) or (3), the receiver must give the person written notice of the refusal. Payment of claims (1) This section applies if— (a) areceiver has given notice under section 57(1); and ND NAB WNe 1116 18 21 2326 28 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators (2) (3) (4) (5) [s 61] (b) _ the time for giving particulars and grounds of claims has ended; and (c) the receiver has considered the claims against receivership property. The receiver may pay a claim allowed by the receiver only if the receivership property is enough to pay all claims allowed by the receiver. If the receivership property is not enough to pay all of the allowed claims, the receiver— (a) may pay any part of the property that consists of money to the chief executive; and (b) must give the claims the receiver has allowed and any documents relating to the claims to the chief executive; and (c) must give a report to the chief executive— (i) stating that the receiver can not pay all of the claims allowed by the receiver; and (ii) identifying the claims against the property that the receiver considers should be paid from the fund. Money paid to the chief executive under subsection (3) must be— (a) paid to the fund; and (b) paid from the fund under section 61(3)(b). In this section— claim does not include a claim by the licensee. Money not dealt with by receiver (1) (2) This section applies to receivership property consisting of money in the receiver's possession. The receiver must give the money to the chief executive if— (a) _ the receiver has not dealt with it under this division; and Page 43 Om NDM PW NK ee a) elated BRWN a nN Ree ND eR Oo oo NN a) NN NN N nN B&B WN 28 30 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 62] (3) (b) the chief executive asks for it. Money given to the chief executive under subsection (2) must be paid to the fund and be paid from the fund in the following order— (a) (b) (c) (d) (e) to reimburse claims paid from the fund in relation to the licensee; to pay unsatisfied claims against the fund in relation to the licensee; to pay the remuneration and costs of a receiver appointed under section 45; to pay the remuneration and costs of a_ special investigator appointed under section 68; to pay claims by the licensee against the money. Subdivision 4 Recovery of receivers' Page 44 remuneration and costs Recovery of remuneration and costs (1) The following persons are liable to reimburse the chief executive for an amount paid to the receiver, including an amount paid from the fund, for the receiver's remuneration and costs— (2) (3) (a) (b) the licensee; if the licensee is a corporation, the executive officers of the corporation when the event for which the chief executive appointed the receiver happened. If more than 1 person is liable to reimburse the chief executive, the liability of the persons is joint and several. The chief executive may recover an amount liable to be reimbursed under subsection (1) as a debt. oCrN DN BWN - Oo co ao NR a w 15 1820 2326 28 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 63] Subdivision 5 Ending receivership 63 Ending receiver's appointment A receiver's appointment ends if— (a) the receiver resigns by signed notice given to the chief executive; or (b) _ the receiver or licensee applies to the chief executive to end the appointment and the chief executive approves the application; or (c) _ the receiver dies; or (d) the chief executive ends the appointment by signed notice given to the receiver. 64 Dealing with receivership property when appointment ends (1) (2) This section applies to receivership property if— (a) _ the receiver's appointment ends; and (b) _ the chief executive has not asked for the property under section 61. If, within 14 days after the end of the receiver's appointment, the chief executive appoints another person (the new receiver) to be the receiver in the former receiver's place, the former receiver must— (a) give the receivership property to the new receiver as soon as reasonably practicable; or (b) if the chief executive gives the former receiver a direction about how to deal with the receivership property, comply with the direction. Maximum penalty—200 penalty units or 1 year's imprisonment. Page 45 Pre OO OND NAH WN re Oo eiilentiend BR WN a nN alia ND NNR re OO CO NN Wh NNN Nn NN on Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 65] (3) (4) (5) If a new receiver is not appointed within the 14 days, the former receiver must give the receivership property to the licensee or other person who has the right to it. Maximum penalty—200 penalty units or 1 _ year's imprisonment. However, the chief executive may direct the former receiver to destroy or give to the chief executive any part of the receivership property consisting of documents if the documents have not been given to the person entitled to them. The former receiver must comply with a direction under subsection (4). Maximum penalty for subsection (5)—200 penalty units or 1 year's imprisonment. Returns by receiver (1) (2) (3) (4) A receiver must give the chief executive a report about the receivership when the chief executive directs. The receiver must also give the chief executive a report when the receiver's appointment ends. The report must contain the information reasonably required by the chief executive. The receiver is not entitled to be paid for the receivership until reports required to be given under this section are given to the chief executive. Subdivision 6 Miscellaneous Page 46 Receiver not personal representative To remove any doubt, it is declared that a receiver of a deceased licensee, in performing the receiver's functions, is not to be taken to be the licensee's personal representative. OMOND NAHB WNe ee a) odilend WN 16 18 20 2227 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 67] 67 Receivership property free from execution or attachment Receivership property can not be levied on or taken or attached under a judgment. Division 4 Special investigators 68 Appointment of special investigator (1) The chief executive may by written notice appoint a special investigator over a licensee's trust account if the chief executive considers the trust account has not been kept as required under this Act. (2) The notice must state— (a) _ the licensee's name and the trust account; and (b) _ the terms on which the special investigator is appointed; and (c) _ the special investigator's functions and powers. (3) Acopy of the notice must be given to the licensee. (4) The chief executive may appoint a person as a special investigator only if the chief executive is satisfied the person is appropriately qualified to perform a special investigator's functions. (5) An inspector may be appointed as a special investigator. 69 Special investigators—functions A special investigator appointed under this division may perform any of the following functions stated in the investigator's notice of appointment— (a) inspecting the licensee's trust accounts and records that relate to the trust accounts; (b) preparing or constructing incomplete trust account records; Page 47 Wh OMDANID MN 13 15 1719 2326 28 Agents Financial Administration Bill 2010 Part 4 Freezing trust accounts and appointing receivers and special investigators [s 70] Page 48 (c) performing other accounting tasks to establish the state of the trust account; (d) reporting to the chief executive under section 72. Special investigators—powers (1) (2) The chief executive may, by signed notice, give a special investigator any or all of the powers that may be given to an inspector under the provisions continued in force under the Property Agents Act 2010, section 292. A special investigator's powers under subsection (1) end when the special investigator's appointment ends. Licensee must comply with special investigator's lawful requests (1) (2) The licensee over whose trust account the special investigator is appointed must comply with a special investigator's lawful requests, unless the licensee has a reasonable excuse. Maximum penalty—200 penalty units or 1 _ year's imprisonment. The special investigator must advise the chief executive of any failure by the licensee to comply with a request. Reports to chief executive (1) (2) A special investigator must report to the chief executive at the time, and in the way, required by the chief executive. However, if the special investigator considers sufficient grounds exist to appoint a receiver, the special investigator must advise the chief executive immediately of the grounds. Recovery of remuneration and costs (1) The following persons are liable to reimburse the chief executive for any amount paid to the special investigator, — w FO ONDN Ff 14 17 19 22 2428 Agents Financial Administration Bill 2010 Part 5 Jurisdiction of QCAT [s 74] including an amount paid from the fund, for the investigator's remuneration and costs— (a) the licensee over whose trust account the special investigator is appointed; (b) if the licensee over whose trust account the special investigator is appointed is a corporation, the executive officers of the corporation when the event for which the chief executive appointed the special investigator happened. (2) If more than | person is liable to reimburse the chief executive, the liability of the persons is joint and several. (3) The chief executive may recover an amount liable to be reimbursed under subsection (1) as a debt. Ending special investigator's appointment A special investigator's appointment ends if— (a) the investigator resigns by signed notice given to the chief executive; or (b) _ the investigator dies; or (c) the investigator's notice of appointment states the appointment ends when an event happens and the event happens; or (d) the chief executive ends the appointment by signed notice given to the investigator. Part 5 Jurisdiction of QCAT Jurisdiction For this Act, QCAT has the following jurisdiction— Page 49 OMNDN BPW NRE ee a) odilend WN 15 17 2023 26 Agents Financial Administration Bill 2010 Part 6 Claim fund [s 76] Part Page 50 (a) to hear and decide claims, other than minor claims, against the fund; (b) to review decisions of the chief executive about minor claims; (c) to review a decision of the chief executive under section 41. 6 Claim fund Claim fund (1) The claim fund is established. (2) The fund consists of— (3) (4) (5) (a) the amount standing to the credit of the claim fund, established under the repealed Act, immediately before the commencement of the Property Agents Act 2010, section 266; and (b) amounts payable to the fund under this Act; and (c) other amounts transferred to the fund by the Treasurer. The Treasurer must transfer amounts to the fund, appropriated from time to time, to meet claims against the fund or the remuneration and costs of a receiver or special investigator payable from the fund, for any particular financial year. Accounts for the fund must be kept as part of the departmental accounts of the department. Amounts transferred to the fund must be deposited in a departmental financial-institution account of the department, but may be deposited in an account used for depositing other amounts of the department. Dun BW NR 1214 16 1820 22 2426 Agents Financial Administration Bill 2010 Part 6 Claim fund [s 77] How fund may be applied (1) (2) (3) The fund must be used to pay the amount of all claims allowed against the fund. The fund may also be used to pay the remuneration and costs of either or both of the following— (a) areceiver appointed under section 45; (b) aspecial investigator appointed under section 68. Note— The remuneration and costs of a receiver are recoverable under section 62 (Recovery of remuneration and costs). The remuneration and costs of a special investigator are recoverable under section 73 (Recovery of remuneration and costs). Amounts recovered under these sections by the chief executive are paid to the fund under section 106 (Recovery of payments—general). The Treasurer may transfer an amount from the fund to the consolidated fund. Agreements with financial institutions (1) (2) (3) The chief executive may enter into an agreement for the State with a financial institution about the keeping of general trust accounts by licensees. The chief executive may enter into an agreement only with the Minister's approval. The agreement may provide for the following things— (a) payment of interest on the whole or part of amounts held in licensees' general trust accounts to the consolidated fund; (b) informing the chief executive of amounts held in licensees' general trust accounts; (c) auditing licensees' general trust accounts; (d) other things concerning licensees' general trust accounts. Page 51 OMAN HD AHP WN ntlesntill vent andlendiaationd Dn BWNKO 1922 2528 31 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 79] Part 7 (4) A financial institution may pay interest to the consolidated fund under an agreement. Claims against the fund Division 1 Preliminary Page 52 Definitions for pt 7 In this part— claimant means a person who makes a claim against the fund. claim notice see section 87(1). financial loss, suffered by a person, if evidenced by a judgment of a court, does not include interest awarded on the judgment. licensee includes a former licensee and a person who is not licensed, but who acts as a licensee. marketeering contravention means a contravention of any of the following by a relevant person— (a) the Property Agents Act 2010, section 233, 234 or 235; (b) section 573A, 573B or 573C of the repealed Act. Note— For claims relating to offences mentioned in paragraph (b), see section 147 (Claim fund). registered office, of a property agent, see the Property Agents Act 2010, section 104. relevant person means any of the following— (a) a property agent under the Property Agents Act 2010; (b) an employee or agent of, or a person carrying on business with, the property agent; or Ne amonrnANnnuwn 11 13 15 17 20 22 24 26 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 80] (c) aperson having charge or control, or apparent charge or control, of the property agent's registered office or business. respondent see section 87(1). 80 What is the purchase of a non-investment residential property A person purchases a non-investment residential property only if— (a) _ the property is a residential property; and (b) either of the following has been assessed for the purchase— (i) aconcession, under the Duties Act 2001, chapter 2, part 9, for transfer duty; (11) a concession, under the repealed Stamp Act 1894, section 55A, for stamp duty. Division 2 Making and dealing with claims 81 Claims A person may make a claim against the fund— (a) under the following— (i) the Commercial Agents Act 2010, section 113; (11) the Property Agents Act 2010, section 192; (iii) the Motor Dealers and Chattels Auctioneers Act 2010, section 213; or (b) if the person suffers financial loss because of a contravention of part 2 of this Act. Page 53 BR WNRe aon aN 11 13 15 182023 25 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 82] Page 54 General time limit for making claims (1) (2) (3) (4) (5) This section applies to a claim against the fund other than a claim because of, or arising out of, a marketeering contravention relating to the purchase of a non-investment residential property. A person may make the claim against the fund for financial loss for the happening of an event only if the person makes the claim within the earlier of the following— (a) 1 year after the person becomes aware that the person has suffered the loss because of the event; (b) 3 years after the happening of the event that caused the person's financial loss. However, if the person starts a proceeding in a court to recover the person's financial loss within the time permitted to make a claim under subsection (2), the person may make the claim within 3 months after the proceeding in the court ends. Subsection (3) does not limit the time allowed under subsection (2) to make a claim. In this section— court includes QCAT. Time limit for making particular claims relating to marketeering contraventions and non-investment residential property (1) A person may make a claim against the fund for capital loss because of, or arising out of, a marketeering contravention relating to the person's purchase of a non-investment residential property only if— (a) the person has within 1 year after the contract date, given the chief executive notice in the approved form that the person intends to make the claim; and (b) the person makes the claim within 6 years after the contract date. OND NABRWN - Oo oO aon NR eatlleeatientl and Nn wW coallaed on Ne Co Oo 222527 2932 (2) (3) (4) Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 84] The approved form must include the matters mentioned in section 85(2)(a) to (d). The QCAT Act, section 61 does not apply to enable QCAT to extend the time permitted to do a thing mentioned in subsection (1)(a) or (b). In this section— contract date means the day on which the contract for the purchase was entered into. 84 Time limit for a claim notified by receiver Despite section 82 or 83, a claim given under section 60(3)(b) to the chief executive by a receiver is taken to have been made within the time allowed under section 82 or 83. 85 Making claims other than particular claims relating to marketeering contraventions and non-investment residential property (1) (2) This section applies to a claim against the fund, other than a claim for loss because of, or arising out of, a marketeering contravention relating to the purchase of a non-investment residential property. The claim must be made to the chief executive in the approved form and state— (a) _ the event alleged to give rise to the claim; and (b) when the event happened; and (c) if the claimant was not immediately aware that the claimant suffered financial loss because of the happening of the event, when the claimant became aware of the financial loss; and (d) all relevant particulars about the event and the financial loss; and (e) the claimant's estimated financial loss. Page 55 CoN DD NBW NRE 11141719 21 23 2527 29 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 86] Page 56 (3) (4) (5) The claim is taken to have been made on the day the claim is given to the chief executive even though the claimant is unable to state all of the particulars mentioned in subsection (2). The chief executive may require the claimant to verify the claim, or part of the claim. Example of verification— statutory declaration f the claim is not made within the time allowed under section 2, the chief executive must give the person a notice in the pproved form stating that— 2 or a) the claim is out of time; and D> > b) the person may apply to QCAT, within 14 days after being given the notice, for an extension of time within which to make the claim. Making particular claims relating to marketeering contraventions and non-investment residential property (1) (2) (3) (4) This section applies to a claim against the fund for capital loss because of, or arising out of, a marketeering contravention relating to the purchase of a non-investment residential property. The claim must— (a) be made to the chief executive in the approved form; and (b) _ state the realised capital loss claimed. Note— See also division 5 (Deciding financial loss for non-investment residential property). A purported claim that does not substantially comply with subsection (2) is of no effect. The chief executive may require the claimant to verify the claim or part of the claim. oN AM BWNKe ero a) = N epee Nn B&B WD 17 1921 2327 29 31 (5) (6) Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 87] Example of verification— statutory declaration To remove any doubt, it is declared that if the purchase was by more than | person, only 1 claim may be made. A claim mentioned in subsection (5) may be made by | of the purchasers or by 2 or more of the purchasers jointly. Chief executive to give respondent notice of claim (1) (2) (3) (4) (5) (6) (7) The chief executive must give notice of the claim (a claim notice) to the person or persons (the respondent) whose actions are alleged to have given rise to the claim. The claim notice must be accompanied by a copy of the claim. The respondent may— (a) give the chief executive any information relevant to the claim; or (b) attempt to settle the claim with the claimant. The respondent must give the chief executive any information relevant to the claim within 14 days after the claim notice is received by the respondent. If the respondent and claimant settle the claim, the respondent must immediately advise the chief executive in writing and provide evidence of the settlement. If the chief executive is satisfied that the claim has settled, the chief executive may treat the claim as having been withdrawn. In this section— claim does not include a claim given to the chief executive by a receiver under section 60(3)(b). Corporation to give notices relating to claim (1) (2) This section applies if the respondent is a corporation. The respondent must give written notice of the claim, within 14 days after the claim notice is received by the respondent, to Page 57 Dn BW Ne 1114 172023 26 28 30 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 89] Page 58 (3) (4) (5) each person who was an executive officer of the corporation at the time the event alleged to give rise to the claim happened, unless the respondent has a reasonable excuse. Maximum penalty— (a) for an individual guilty of an offence under chapter 2 of the Criminal Code or for section 136—100 penalty units; or (b) for a corporation—500 penalty units. An executive officer mentioned in subsection (2) is taken to be a respondent to the claim. The respondent is taken to have given the notice to an executive officer if the notice is sent to the residential and business address of the officer last known to the respondent. The respondent must give the chief executive, within 21 days after the claim notice is given to the respondent— (a) written notice of the name and last known residential and business address of each person who was an executive officer of the corporation at the time the event alleged to give rise to the claim happened; and (b) acopy of the notice to the former executive officer given under subsection (2) and information about when the notice was given. Maximum penalty for subsection (5)— (a) for an individual guilty of an offence under chapter 2 of the Criminal Code or for section 136—100 penalty units; or (b) for a corporation—500 penalty units. Dealing with claims that have not settled (1) If the claim has not settled within 28 days after the claim notice is given to the respondent, the claimant may give the chief executive written notice that the claimant wants to proceed with the claim. 3032 (2) (3) Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 90] If a notice under subsection (1) relates to a minor claim, the chief executive is to decide the minor claim. If a notice under subsection (1) relates to a claim other than a minor claim— (a) _ the chief executive must refer the claim to QCAT; and (b) QCAT is to decide the claim. 90 Inspector may investigate claims and report and related documents may be referred to QCAT (1) The chief executive may direct an inspector to investigate a claim that has not settled. (2) Ifan inspector investigates a claim, the inspector must prepare a report about the claim and give a copy of the report to the chief executive. (3) The chief executive must give a copy of the report to the claimant and the respondent and, if the report is about a claim to be decided by QCAT, to the president of QCAT. (4) The chief executive may also give documents relating to the claim to the claimant and the respondent (the parties) and, if the claim is to be decided by QCAT, to the president of QCAT whether or not a report is given to the parties and QCAT under subsection (3). Division 3 Minor claims 91 Procedure for deciding minor claims (1) (2) This division applies to a minor claim the chief executive must decide. The chief executive, by written notice, must invite the claimant and the respondent (the parties) to give the chief executive written comments about the inspector's report prepared under section 90 within 14 days after giving the notice. Page 59 NH nN BW NKR 1215182025 2729 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 92] Page 60 (3) If the chief executive receives comments from 1 or both parties, the chief executive must provide the other party with a copy of the comments and invite that party to give the chief executive any further comments within 14 days after giving the notice. (4) The chief executive, by written notice, may ask the claimant or respondent for the further information or documents the chief executive reasonably requires to decide the claim. (5) The chief executive must have regard to any report prepared by an inspector under section 90 and the parties' comments when deciding the claim. (6) The chief executive must decide the claim without a hearing. Amendment of claim (1) The chief executive may, at any time before deciding the claim, amend the particulars of the claim in the way the chief executive considers appropriate— (a) on application, if the chief executive is satisfied the amendment is of a formal or minor nature and no party is unfairly prejudiced by the amendment; or (b) on the chief executive's own initiative, if all the parties agree. (2) The amended claim is taken to be the claim. Respondent fails to respond to claim (1) This section applies if the chief executive is satisfied that the respondent— (a) has been given notice of the claim, but has not responded to the claim; or (b) can not be located after the making of reasonable inquiries into the respondent's whereabouts. COND WNBWNK ero a) = N 151821 25 27 29 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 94] (2) The chief executive may consider and decide the claim in the absence of any comments or submissions made by the respondent. 94 Deciding minor claims (1) The chief executive may allow the claim, wholly or partly, or reject the claim. (2) However, the chief executive may allow the claim only if satisfied, on the balance of probabilities, that— (a) an event mentioned in any of the following provisions happened— (i) the Commercial Agents Act 2010, section 113(1); (11) the Property Agents Act 2010, section 192(1); (iii) the Motor Dealers and Chattels Auctioneers Act 2010, section 213(1); (iv) section 81(b); and (b) the claimant suffered financial loss because of the happening of the event. (3) Ifthe chief executive allows the claim, wholly or partly, the chief executive must— (a) take into account any amount the claimant might reasonably have received or recovered if not for the claimant's neglect or default; and (b) decide the amount of the claimant's financial loss; and (c) name the person who is liable for the claimant's financial loss. 95 Notifying decision (1) The chief executive must give the parties an information notice for the chief executive's decision under section 94(1) (the reviewable decision). Page 61 WNre On AN ff 1114 17 19 2125 28 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 96] Page 62 (2) The information notice must include the following additional information— (a) (b) the chief executive's findings about the facts of the case; if the decision is that an amount be paid to the claimant from the fund— (1) (i) that i that the respondent named in the decision is liable to reimburse the fund to the extent of the amount paid to the claimant from the fund; and if more than | person is named as being liable to reimburse the fund, that the liability of the persons named is joint and several; no application is made to have the decision reviewed within the time allowed under the QCAT Act— (1) (i) the decision is binding on the parties; and if the decision is to allow the claim and authorise payment from the fund, the respondent named in the decision as liable to reimburse the fund is liable to reimburse the fund to the extent of the amount paid to the claimant from the fund. Party may ask QCAT to review chief executive's decision A party who is dissatisfied with the chief executive's decision under section 94 may apply, as provided under the QCAT Act, to QCAT for a review of the decision. Chief executive's decision binds the parties If no application for review of the chief executive's decision is made within the time allowed under the QCAT Act— (a) (b) the chief executive's decision is binding on the claimant and the respondent; and the amount paid to the claimant from the fund in accordance with the decision may be recovered by the AAD NAHB WwW NR ero a) eillentilend BRWN a nN Nee SCHMID 2327 29 31 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 98] chief executive as a debt owing to the chief executive by the respondent named in the decision; and (c) the respondent may not subsequently challenge the correctness of the decision or the amount payable. Division 4 Claims other than minor claims 98 Deciding claims other than minor claims (1) QCAT may allow a claim other than a minor claim, wholly or partly, or reject the claim. (2) (3) However, QCAT may allow the claim only if satisfied, on the balance of probabilities, that— (a) an event mentioned in any of the following provisions happened— (i) (i) the Commercial Agents Act 2010, section 113(1); the Property Agents Act 2010, section 192(1); (ii) the Motor Dealers and Chattels Auctioneers Act 2010, section 213(1); (iv) section 81(b); and (b) the claimant suffered financial loss because of the happening of the event. If QCAT allows the claim, wholly or partly, QCAT must— (a) take into account— (1) (i) any amount the claimant might reasonably have received or recovered if not for the claimant's neglect or default; and any amount ordered to be paid to the claimant as compensation under the Property Agents Act 2010, section 213, 230 or 257; and (b) decide the amount of the claimant's financial loss; and Page 63 RW NR ona 12 14 16 19 21 2326 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 99] (c) name the person who is liable for the claimant's financial loss. Division 5 Deciding financial loss for Page 64 non-investment residential property Application of div 5 This division applies if the chief executive or QCAT is deciding a claimant's financial loss for realised capital loss because of, or arising out of, a marketeering contravention relating to the purchase of a non-investment residential property. Note— See also the Property Agents Act 2010, section 194 (Claims limited to realised loss). General test for working out loss (1) (2) Subject to section 101, the financial loss is the amount of the difference between the contract price or value for the property paid by the claimant and the contract price or value for the sale of the property by the claimant (the on-sale). The loss is only realised if the on-sale has been completed. Adjustment for on-sale not at market value (1) (2) The chief executive or QCAT must decide whether the contract price or value for the on-sale reasonably reflected the property's market value when the contract was entered into. If the chief executive or QCAT decides the contract price or value did not reasonably reflect the property's market value— (a) the chief executive or QCAT must fix what the reasonable market value of the property was when the contract was entered into; and — RW OMDANID MN 11 13 1618 2225 27 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 102] (b) for section 100(1), the contract price or value is taken to be that fixed market value. Division 6 Payment of claims and liability of persons for payments from the fund 102 Payment of claims (1) Ifa claim is allowed under section 94 or 98 or on a review of the chief executive's decision, the chief executive must authorise payment from the fund in the amount decided by the chief executive or QCAT. (2) A payment under subsection (1)— (a) must not be made— (i) for a minor claim—until the end of the period allowed for review of the chief executive's decision and, if a review is applied for, until the review and any appeal is finally decided; or (i1) otherwise—until the end of the period allowed for appeal and, if an appeal is made, until the appeal is finally decided; and (b) is taken to be in full settlement of the claim against the fund. (3) This section is subject to section 104. 103 Liability for payment from the fund (1) This section applies if— (a) a person (the responsible person) is named in the chief executive's decision or QCAT's order as being liable for a claimant's financial loss; and Note— See sections 94 (Deciding minor claims), 98 (Deciding claims other than minor claims) and 114 (Orders QCAT may make on claim hearing). Page 65 — Rw OWMOND Nn 1315 1720 23 2529 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 104] Page 66 (2) (3) (4) (b) an amount has, under section 102, been paid from the fund to the claimant in settlement of the claimant's claim. Each person as follows is jointly and severally liable to reimburse the fund to the extent of the amount paid to the claimant— (a) _ the responsible person; (b) if the responsible person is a corporation, each person who was an executive officer of the corporation when the relevant event mentioned in any of the following provisions happened— (i) the Commercial Agents Act 2010, section 113(1); (11) the Property Agents Act 2010, section 192(1); (iii) the Motor Dealers and Chattels Auctioneers Act 2010, section 213(1); (iv) section 81(b). The chief executive may recover from each person mentioned in subsection (2) as a debt an amount for which the person is, under the subsection, liable to reimburse the fund. Before taking action to recover the amount of the debt, the chief executive must give a letter of demand to the debtor requiring the debtor to pay the amount to the chief executive within 28 days after receiving the letter. Limits on recovery from fund (1) A claimant can not recover from the fund an amount more than the balance of the claimant's financial loss after deducting from the claimant's loss— (a) the amount, including the value of all benefits, received or recovered by the claimant from a source other than the fund in reduction of the loss; and (b) the amount, including the value of all benefits, the chief executive or QCAT considers the claimant might Come NI DANK WNe ee eo Re ee Ww NY a ns — fom alii aeelilened \o on NNNN WNrF oOo 262932 (2) (3) (4) (5) Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 105] reasonably have received or recovered if not for the claimant's neglect or default. Examples of paragraph (a)— 1 compensation received from the licensee for the loss 2 apayment from a receiver for the loss A claimant may not recover from the fund for a single claim an amount more than the amount prescribed under a regulation. Also, the claimant may not recover more than $35000 from the fund for a single claim for financial loss if the claim relates to a non-investment residential property purchased by the claimant because of, or arising out of, a marketeering contravention. A regulation may prescribe the total amount that may be paid from the fund because of, or arising out of, a contravention, failure to ensure clear title to a vehicle, stealing, misappropriation or misapplication by a single person. Interest is not payable from the fund for a claim allowed against the fund. Notice of other recovery A claimant must give the chief executive written notice of an amount or benefit, other than an amount from the fund, received by the claimant for the claimant's financial loss, whether before or after the claim is paid. Maximum penalty—200 penalty units or 3 years imprisonment. Page 67 CAD A PW NK ee eH WNeo RRR NDNA eR Oo oo 2224 26 Agents Financial Administration Bill 2010 Part 7 Claims against the fund [s 106] Division 7 Reimbursements to fund 106 Recovery of payments—general The chief executive must pay to the fund any amount recovered by the chief executive in satisfaction of an amount paid from the fund. 107 Recovery of overpayments Page 68 (1) (2) (3) (4) This section applies if a claimant who has received a payment from the fund recovers— (a) an amount more than the claimant is entitled to recover under section 104 (the overpayment); or (b) a thing capable of physical delivery for which the claimant received a payment from the fund. The claimant must— (a) reimburse the overpayment to the fund; or (b) for a thing capable of physical delivery— (i) deliver the thing to the chief executive in accordance with the chief executive's direction; or (i1) reimburse to the fund the amount of the payment from the fund the person received for the thing. Maximum penalty—200 penalty units. The chief executive may recover the overpayment or the amount of the payment from the fund the person received for the thing as a debt owing to the chief executive by the person. If the chief executive receives a thing, the chief executive may sell the thing in the way the chief executive decides. ABW NY ona 12 1417 19 2225 Agents Financial Administration Bill 2010 Part 8 Proceedings generally [s 108] Part 8 Proceedings generally Division 1 Extending time 108 QCAT may extend time (1) QCAT may extend the time within which to file the claim or seek review of a decision of the chief executive if QCAT is satisfied— (a) _ the application is made— (i) for a claim—within the time mentioned in the notice given under section 85(5)(b); or (ii) for a review of a decision of the chief executive—within 42 days after the person receives notice of the decision to be reviewed; and (b) it is appropriate to extend time having regard to— (i) _ the reasons for not making the claim or seeking the review within the time allowed; and (ii) the application generally; and (iil) for a claim, the relative hardship that an extension of time or a refusal to extend time would place on the claimant or respondent; and (iv) the justice of the matter generally. (2) No appeal lies against QCAT's decision under this section. Division 2 Proceedings involving a claim against the fund 109 Chief executive may make submissions (1) This section applies if a proceeding before QCAT involves a claim against the fund. Page 69 OA A DANA W 1115 1821 23 26 Agents Financial Administration Bill 2010 Part 8 Proceedings generally [s 110] (2) The chief executive may make submissions to QCAT, including submissions about liability for the claimant's financial loss. (3) Subsection (2) applies whether or not the chief executive is a party to the proceeding. 110 Application of QCAT Act, s 131 To remove any doubt, it is declared that the reference in the QCAT Act, section 131(2) to a person includes a reference to the chief executive. Division 3 Applications for reimbursement orders 111. Application for reimbursement order (1) This section applies if— (a) _ the chief executive decides to allow, wholly or partly, a claim against the fund under section 94; and (b) the respondent to the claim named in the decision as liable to reimburse the fund has not done so as required under a letter of demand given to the respondent under section 103(4). (2) The chief executive may apply, as provided under the QCAT Act, to QCAT for an order that a respondent reimburse the fund. (3) The application must be accompanied by the following documents— (a) a copy of the claim against the fund about which the application is made; (b) copies of the written notice of the chief executive's decision, the decision and the information notice given under section 95; Page 70 AR WNe OOon Dd 11 13 15 1719 2124 26 28 Agents Financial Administration Bill 2010 Part 8 Proceedings generally [s 112] (c) a copy of the letter of demand given under section 103(4); (d) astatutory declaration by the chief executive stating— (i) the amount paid from the fund in settlement of the claim; and (ii) the amount of any payment received from the respondent in satisfaction of the claim. 112 Respondent to be advised of application for reimbursement order (1) On receiving the application, the registrar must— (a) fix a date for consideration of the application by QCAT; and (b) give a copy of the application and the accompanying documents to the respondent; and (c) advise the respondent that QCAT will make a reimbursement order if satisfied that— (i) _ the chief executive has made a decision about the claim against the fund; and (i1) under the chief executive's decision the respondent is liable to reimburse the fund in a stated amount; and (iii) an information notice under section 95 was given to the respondent; and (iv) the respondent did not apply to QCAT under section 96 to have the decision reviewed; and (v) a letter of demand was sent to the respondent under section 103(4); and (vi) the respondent has not paid the stated amount within the time allowed under the letter of demand. (2) The registrar must invite the respondent to make written submissions for QCAT's consideration about when and in Page 71 NAD WB W NK \o co 12 14 16 18 2023 25 27 29 31 Agents Financial Administration Bill 2010 Part 8 Proceedings generally [s 113] (3) what way the respondent intends to satisfy the amount paid from the fund in settlement of the claim. Submissions made under subsection (2) must be given to the registrar by a date notified to the respondent being a day at least 7 days before the day fixed for consideration of the application. Division 4 QCAT's orders 113 Stopping contraventions (1) (2) (3) (4) (5) (6) This section applies if QCAT is satisfied, on application by the chief executive, that a person is doing, or is about to do, something in contravention of this Act. QCAT may, by order, prohibit the person who is doing or is about to do the thing (the prohibited person) from starting or continuing the thing. QCAT may make an order under this section on the chief executive's application made without notice to the prohibited person but, in that case, QCAT must allow the prohibited person a reasonable opportunity to show cause why the order should not be confirmed. If QCAT, after considering the prohibited person's evidence and submissions, if any, and any further evidence or submissions of the chief executive, is not satisfied the order should continue in force, QCAT must rescind the order. A person must not contravene an order under this section. Maximum penalty—S40 penalty units. An order under this section has effect on the giving of a copy of the order to the prohibited person. 114 Orders QCAT may make on claim hearing Page 72 QCAT may make the following orders for a claim against the fund— DAnbPwW NK 11 1316182123 25 27 30 (a) (b) (c) (d) Agents Financial Administration Bill 2010 Part 8 Proceedings generally [s 115] an order allowing the claim, wholly or partly, or rejecting the claim; an order stating that a named person is liable for a claimant's financial loss and the amount of the loss; an order about recovery of an amount payable for a claim; an order that no amount is recoverable for a claim. 115 Reimbursement orders (1) QCAT must consider an application for a reimbursement order and any written submissions made by the respondent for the application. (2) QCAT must make a reimbursement order if satisfied that— (a) (b) (c) (d) (e) the chief executive has made a decision about a claim against the fund; and under the chief executive's decision the respondent is liable to reimburse the fund in a stated amount; and written notice of the chief executive's decision, a copy of the decision and an information notice under section 95 was given to the respondent; and the respondent did not apply to QCAT to have the chief executive's decision reviewed under section 96; and the respondent has not paid the stated amount within the time allowed under the letter of demand. (3) If QCAT makes a reimbursement order, the order must state that the respondent is liable to pay to the chief executive a stated amount within a stated period. 116 When QCAT order takes effect (1) A QCAT decision or order in a proceeding involving the claim fund takes effect— Page 73 NYDN BPW NK 11 14 16 1821 23 2529 Agents Financial Administration Bill 2010 Part 9 Injunctions and undertakings [s 117] (a) if all parties to the proceeding are present when the decision or order is made—when the decision or order is made; or (b) otherwise—when the decision or order is published. (2) A decision or order involving the claim fund must be published under the QCAT Act, section 125. Division 5 Chief executive's right of appeal 117 Appeal (1) The chief executive may appeal to the appeal tribunal against any decision of QCAT, but only on the ground of error of law. (2) In this section— appeal tribunal means QCAT as constituted under the QCAT Act, section 166 for an appeal. Part 9 Injunctions and undertakings Division 1 Injunctions 118 Injunctions An injunction under this part may be granted by the District Court against a person (the respondent) at any time. 119 Who may apply for injunction The following persons may apply to the District Court for an injunction— Page 74 Dn fF WNe 11 13 18 21 (a) (b) Agents Financial Administration Bill 2010 Part 9 Injunctions and undertakings [s 120] the chief executive; a person aggrieved by the respondent's conduct. 120 Grounds for injunction The District Court may grant an injunction if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute— (a) (b) (c) (d) (e) (f) a contravention of this Act; or attempting to contravene this Act; or aiding, abetting, counselling or procuring a person to contravene this Act; or inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act; or being in any way, directly or indirectly, knowingly concermed in, or party to, the contravention by a person of this Act; or conspiring with others to contravene this Act. 121 Court's powers for injunctions (1) The power of the District Court to grant an injunction restraining a person from engaging in conduct may be exercised— (a) (b) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and whether or not the person has previously engaged in conduct of that kind. (2) The power of the court to grant an injunction requiring a person to do an act or thing may be exercised— Page 75 CoN NDWNHK W 1215202326 28 Agents Financial Administration Bill 2010 Part 9 Injunctions and undertakings [s 122] Page 76 (3) (4) (a) whether or not it appears to the court that the person intends to fail again, or to continue to fail, to do the act or thing; and (b) whether or not the person has previously failed to do the act or thing. An interim injunction may be granted under this part until the application is finally decided. The District Court may rescind or vary an injunction at any time. Terms of injunction (1) (2) (3) The District Court may grant an injunction in the terms the court considers appropriate. Without limiting the court's power under subsection (1), an injunction may be granted restraining a person from carrying on a business as a licensee (whether or not the person is licensed or the business is carried on as part of, or incidental to, the carrying on of another business )}— (a) fora stated period; or (b) except on stated terms and conditions. Also, the court may grant an injunction requiring a person to take stated action, including action to disclose information or publish advertisements, to remedy any adverse consequences of the person's contravention of this Act. Undertakings as to costs If the chief executive applies for an injunction under this part, no undertaking as to damages or costs may be required or made. Om ND NWP WNK 12 141619 2123 26 Agents Financial Administration Bill 2010 Part 9 Injunctions and undertakings [s 124] Division 2 Undertakings 124 Chief executive may seek undertaking after contravention (1) If the chief executive believes, on reasonable grounds, a person has contravened or been involved in a contravention of this Act, the chief executive may, by written notice given to the person— (a) state the act or omission the chief executive believes is the contravention; and (b) ask the person to give the chief executive a written undertaking that the person will not continue or repeat the act or omission. (2) If (a) the person gives the undertaking and, if the contravention is conduct consisting of a series of acts or omissions, the person stops the conduct; and (b) | the chief executive accepts the undertaking; the chief executive can not start an offence proceeding against the person for the contravention, unless the chief executive withdraws the undertaking under section 126. 125 Undertaking about other matter Without limiting section 124, the chief executive may accept an undertaking given by a person about anything for which the chief executive or an inspector has a function or power. Example of type of undertaking for this section— an undertaking to publish corrective advertising 126 Variation and withdrawal of undertakings (1) If the chief executive accepts the undertaking, it may be varied or withdrawn at any time by— Page 77 OD ADNH WHY 1115192326 29 Agents Financial Administration Bill 2010 Part 9 Injunctions and undertakings [s 127] Page 78 (2) (3) (4) (a) the person who gave it, but only if the chief executive agrees to the variation or withdrawal; or (b) the chief executive, if the chief executive believes, on reasonable grounds— (i) _ that, before it was accepted, the person who gave it contravened this Act in a way unknown to the chief executive; and (ii) had the chief executive known about the contravention, the chief executive would not have accepted the undertaking or would not have accepted it unless its terms were changed. The chief executive may also withdraw the undertaking if the chief executive believes, on reasonable grounds, it is no longer necessary. If the chief executive varies or withdraws, or agrees to the variation or withdrawal of, the undertaking, the chief executive must give the person who gave it written notice of its variation or withdrawal. The variation or withdrawal takes effect when written notice of the variation or withdrawal is received by the person. Enforcement of undertakings (1) (2) If the chief executive believes, on reasonable grounds, a person has contravened a term of an undertaking, the chief executive may apply to the District Court for an order under this section. If the court is satisfied that the person has contravened the term, the court may make | or more of the following orders— (a) an order directing the person to comply with the term; (b) an order directing the person to pay to the State an amount that is not more than the direct or indirect financial benefit obtained by the person from, and reasonably attributable to, the contravention; Om NDM PW NK ee a) elated BRWN coeliledii sail an! aearnan Nr cw 2325 27 3032 (3) Agents Financial Administration Bill 2010 Part 9 Injunctions and undertakings [s 128] (c) an order directing the person to pay compensation to someone else who has suffered loss or damage because of the contravention; (d) an order directing the person to give a security bond to the State for a stated period; (e) another order the court considers appropriate. The District Court may order the forfeiture to the State of all or part of a security bond given by a person under subsection (2)(d) if— (a) _ the chief executive applies to the court for the order; and (b) the court is satisfied that the person contravened the undertaking during the period for which the bond was given. Register of undertakings (1) (2) (3) (4) (5) (6) The chief executive must keep a register of each undertaking given to the chief executive by a person under this part. The register must contain a copy of the undertaking. A person may, on payment of any fee that may be prescribed under a regulation, inspect, or get a copy of details in, the register— (a) ata place or places decided by the chief executive; or (b) _ by using a computer. A person may pay the fee, in advance or in arrears, under an arrangement approved by the chief executive. The register may be kept in any way the chief executive considers appropriate. The chief executive may publish the information contained in the register on the department's website. Page 79 OMANI D NP WNK — Co (cedilenciiloe WNRe 16 1922 24 26 28 Agents Financial Administration Bill 2010 Part 10 General contraventions, evidentiary matters and legal proceedings [s 129] Part 10 General contraventions, evidentiary matters and legal proceedings Division 1 General contraventions 129 Offence to deal with trust account A person must not operate on a licensee's trust account unless the person is— (a) _ the licensee; or (b) a person actually employed by the licensee and authorised by the licensee to operate on the trust account; or (c) otherwise permitted under this Act to operate on the licensee's trust account. Maximum penalty—200 penalty units or 3 years imprisonment. 130 False or misleading statements Page 80 (1) A person must not, for this Act, state anything to an official the person knows is false or misleading in a material particular. Maximum penalty—200 penalty units or 2 _ years imprisonment. (2) In this section— official means— (a) _ the chief executive; or (b) an inspector; or (c) apublic service employee. araninn 11 13 15 1821 2325 Agents Financial Administration Bill 2010 Part 10 General contraventions, evidentiary matters and legal proceedings [s 131] 131. False or misleading documents (1) A person must not, for this Act, give an official a document containing information the person knows is false or misleading in a material particular. Maximum penalty—200 penalty units or 2 years imprisonment. (2) Subsection (1) does not apply to a person if the person, when giving the document— (a) informs the official, to the best of the person's ability, how it is false or misleading; and (b) if the person has, or can reasonably obtain, the correct information, gives the correct information. (3) A person must not make an entry in a document required or permitted to be made or kept under this Act knowing the entry to be false or misleading in a material particular. Maximum penalty—200 penalty units or 2 years imprisonment. (4) In this section— official means— (a) _ the chief executive; or (b) an inspector; or (c) apublic service employee. Division 2 Evidentiary matters 132 Evidentiary provisions (1) (2) This section applies to a proceeding under this Act. The appointment or power of an inspector must be presumed unless a party, by reasonable notice, requires proof of— (a) the appointment; or (b) the power to do anything under this Act. Page 81 CON DMN BWNY - Oo co —eroy NR pee On BW eR ND NO NY NF NF CoC OO 25 27 29 Agents Financial Administration Bill 2010 Part 10 General contraventions, evidentiary matters and legal proceedings [s 133] (3) A signature purporting to be the signature of the chief executive or an inspector is evidence of the signature it purports to be. (4) A certificate purporting to be signed by the chief executive, a member of QCAT, the principal registrar under the QCAT Act or an inspector stating any of the following matters is evidence of the matter— (a) astated document is— (i) an order, direction, requirement or decision, or a copy of an order, direction, requirement or decision, given or made under this Act; or (il) a notice, or a copy of a notice, given under this Act; or (iil) a record, or a copy of a record, kept under this Act; or (iv) a document, or a copy of a document, kept under this Act; (b) ona stated day, a stated person— (i) _ was, or was not, the holder of a stated licence; or (il) was given a stated notice, order, requirement or direction under this Act. 133 Entries in licensee's documents An entry in a document kept by or belonging to a licensee or found in the licensee's premises is evidence that the entry has been made by or with the authority of the licensee. Page 82 eCorAIDMNAHR WNK ero a) odilend WN a ns Ree ND re eR oOo co NN a) 24 Agents Financial Administration Bill 2010 Part 10 General contraventions, evidentiary matters and legal proceedings [s 134] Division 3 Proceedings 134 Proceedings for an offence (1) (2) (3) (4) (5) Subject to subsection (2), a proceeding for an offence against this Act must be taken in a summary way under the Justices Act 1886 within the later of the following— (a) 1 year after the offence is committed; (b) 6 months after the commission of the offence comes to the complainant's knowledge, but within 2 years after the commission of the offence. A proceeding for an indictable offence may be taken, at the prosecution's election— (a) by way of summary proceedings under the Justices Act 1886; or (b) on indictment. A proceeding against a person for an indictable offence must be before a magistrate if it is a proceeding— (a) for the summary conviction of the person; or (b) for an examination of witnesses relating to the charge. If a proceeding for an indictable offence is brought before a Justice who is not a magistrate, jurisdiction is limited to taking or making a procedural action or order within the meaning of the Justices of the Peace and Commissioners for Declarations Act 1991. If— (a) a person charged with an indictable offence asks at the start of a summary proceeding for the offence that the charge be prosecuted on indictment; or (b) the magistrate hearing a charge of an indictable offence considers the charge should be prosecuted on indictment; the magistrate— Page 83 OANI DD NBW NY 11 13 16 18 20222629 Agents Financial Administration Bill 2010 Part 10 General contraventions, evidentiary matters and legal proceedings [s 135] Page 84 (6) (7) (8) (c) must not decide the charge as a summary offence; and (d) must proceed by way of a committal proceeding. If a magistrate acts under subsection (5)— (a) any plea of the person charged, made at the start of the proceeding, must be disregarded; and (b) any evidence brought in the proceeding before the magistrate decided to act under subsection (5) is taken to be evidence in the proceeding for the committal of the person for trial or sentence; and (c) before committing the person for trial or sentence, the magistrate must make a statement to the person under the Justices Act 1886, section 104(2)(b). The maximum penalty that may be imposed on a summary conviction of an indictable offence is 200 penalty units or 1 year's imprisonment. In this section— indictable offence means an offence against this Act for which the maximum penalty of imprisonment is more than 2 years. Responsibility for acts or omissions of representatives (1) (2) (3) This section applies in a proceeding for an offence against this Act. If it is relevant to prove a person's state of mind about a particular act or omission, it is enough to show— (a) the act was done or omitted to be done by a representative of the person within the scope of the representative's actual or apparent authority; and (b) _ the representative had the state of mind. An act done or omitted to be done for a person by a representative of the person within the scope of the representative's actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the OMOND NB WN 11141822 24 263032 (4) Agents Financial Administration Bill 2010 Part 10 General contraventions, evidentiary matters and legal proceedings [s 136] person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission. In this section— offence includes a contravention of this Act for which an amount may be ordered by the District Court or QCAT to be paid as a money penalty. representative means— (a) of a corporation—an executive officer, employee or agent of the corporation; or (b) of an individual—an employee or agent of the individual. state of mind, of a person, includes— (a) the person's knowledge, intention, opinion, belief or purpose; and (b) | the person's reasons for the intention, opinion, belief or purpose. 136 Executive officers must ensure corporation complies with Act (1) (2) (3) The executive officers of a corporation must ensure that the corporation complies with this Act. If a corporation commits an offence against a provision of this Act, each of the executive officers of the corporation also commit an offence, namely, the offence of failing to ensure that the corporation complies with the provision. Maximum penalty—the penalty for the contravention of the provision by an individual or, if the penalty is expressed to be for this section, the expressed penalty. Evidence that the corporation has been convicted of an offence against a provision of this Act is evidence that each of the executive officers committed the offence of failing to ensure that the corporation complies with the provision. Page 85 ome NY ANB W NK ee a) = N ee RW alle! Dun 18 20 2224 262931 Agents Financial Administration Bill 2010 Part 10 General contraventions, evidentiary matters and legal proceedings [s 137] Page 86 (4) (5) However, it is a defence for an executive officer to prove that— (a) if the officer was in a position to influence the conduct of the corporation in relation to the offence—the officer took all reasonable steps to ensure the corporation complied with the provision; or (b) _ the officer was not in a position to influence the conduct of the corporation in relation to the offence. For subsection (4)(a), it is sufficient for the executive officer to prove that the act or omission that was the offence was done or made without the officer's knowledge despite the officer having taken all reasonable steps to ensure the corporation complied with the provision. Power of court (1) (2) (3) (4) A court may, in addition to any other penalty it may impose, order that a licensee's licence be suspended for a stated period or cancelled if the licensee has been convicted of an offence against this Act. The court may also order that a person convicted of an offence against this Act be disqualified from holding a licence for a stated period or permanently. The court may make an order under subsection (1) or (2)— (a) on the chief executive's application; or (b) on its own initiative. If an order is made by a court under this section on the court's own initiative, the court must cause a copy of the order to be given to the chief executive. Allegations of false or misleading representations or statements etc. In any proceeding for an offence against this Act involving a false or misleading statement, representation or entry, or false or misleading information, it is enough for a charge to state ON ADAWNBW NR Co) WN OS 1618 20232629 31 Agents Financial Administration Bill 2010 Part 11 General [s 139] that the statement, representation, entry or information was 'false or misleading'. Part 11 General 139 Public warning statements (1) The Minister or chief executive may make or issue a public statement identifying and giving warnings or information about the commission of offences against this Act and persons who commit the offences. (2) The statement may identify particular offences and persons. (3) The Minister or chief executive must not make or issue a statement under this section unless satisfied that it is in the public interest to do so. 140 Civil remedies not affected Nothing in this Act affects or limits any civil remedy that a person may have against a licensee or another person for any matter. 141 Criminal Proceeds Confiscation Act 2002 not limited Nothing in this Act limits the Criminal Proceeds Confiscation Act 2002. 142 Delegation—chief executive (1) The chief executive may delegate the chief executive's powers, other than power under section 139, to an appropriately qualified public service employee. Page 87 — CANN fF \o 111519 22 Agents Financial Administration Bill 2010 Part 11 General [s 143] Page 88 (2) Insubsection (1)— appropriately qualified includes having the qualifications, experience or standing appropriate to exercise the power. Example of standing— the level at which a person is employed within the department Approved forms The chief executive may approve forms for use under this Act. Review of Act (1) The Minister must ensure the operation of this Act is reviewed. (2) The review must start within 3 years after the commencement of this section. (3) The Minister must table in the Legislative Assembly a report on the outcome of the review as soon as practicable after the review is finished. Regulation-making power (1) The Governor in Council may make regulations under this Act. (2) Without limiting subsection (1), a regulation may be made about the following— (a) ways in which amounts may be paid from a trust account; (b) _ the audit of trust accounts and documents; (c) the keeping of records, including the form in which a record is kept; (d) the keeping of receipts and evidence of expenditure; (e) _ the length of time a document required to be kept under this Act is to be kept; nA BR WN a 12 1418 20 22 25 28 Part 12 Agents Financial Administration Bill 2010 Part 12 Transitional provisions [s 146] (f) imposing a penalty for a contravention of a regulation of not more than 20 penalty units. Transitional provisions 146 Definition for pt 12 In this part— commencement means the commencement of this section. 147 Claim fund (1) (2) (3) (4) (5) (6) The rights and liabilities of the claim fund under the repealed Act (the former fund) are taken to be the rights and liabilities of the claim fund under this Act (the current fund). A claim that has been made against the former fund, and not finished before the commencement, continues as if it were a claim against the current fund. If, before the commencement, a person could have made a claim against the former fund but did not make the claim, the person may make the claim against the current fund. If, before the commencement, the chief executive had started a proceeding to recover an amount paid out of the former fund, the proceeding is taken to have been started by the chief executive as if the amount had been paid out of the current fund. If, had the repealed Act not been repealed, the chief executive could start a proceeding to recover an amount paid out of the former fund, the chief executive may start the proceeding as if the amount had been paid out of the current fund. This Act applies to a proceeding under subsection (4) or (5), with necessary changes. Page 89 — 121518202325 27 Agents Financial Administration Bill 2010 Part 12 Transitional provisions [s 148] Page 90 Existing special investigators A person who held an appointment as a special investigator under the repealed Act immediately before the commencement is taken, on the commencement, to be appointed as a special investigator under this Act. Continuation of reviews under the repealed Act (1) (2) (3) (4) Subsection (2) applies if— (a) a person applied to QCAT under the repealed Act, section 483 or 501 for a review of a decision of the chief executive; and (b) the review had not been decided before the commencement. QCAT may hear, or continue to hear, and decide the review under the repealed as if that Act had not been repealed. Subsection (4) applies if— (a) a person could have applied under the repealed Act, section 483 or 501 for a review of a decision of the chief executive; but (b) | the person had not applied before the commencement. The person may apply for a review of the decision under the repealed Act as if that Act had not been repealed. Proceedings (1) (2) A proceeding brought under the repealed Act that has not been finished before the commencement may be continued and finished under the repealed Act. Subsection (3) applies if— (a) a proceeding has not, but could have, been started under the repealed Act because of an event that happened before the commencement; and ARWN on AND 12 14 1721 2428 (b) (c) Agents Financial Administration Bill 2010 Part 12 Transitional provisions [s 151] the proceeding is about an event for which a legal proceeding can be started under this Act; and the time allowed for bringing the proceeding has not expired. (3) The proceeding may be started under this Act. 151 =' Injunctions relating to pre-commencement conduct (1) An injunction granted by the District Court under the repealed Act continues to be a valid injunction under this Act according to its terms. (2) The provisions of this Act relating to injunctions apply to an injunction continued under subsection (1). (3) In addition to section 120, the District Court may also grant an injunction if the court is satisfied that a person has, before the commencement, engaged in conduct that constituted— (a) (b) (c) (d) (e) (f) a contravention of the repealed Act; or an attempt to contravene the repealed Act; or aiding, abetting, counselling or procuring a person to contravene the repealed Act; or inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene the repealed Act; or being in any way, directly or indirectly, knowingly concermed in, or party to, the contravention by a person of the repealed Act; or conspiring with others to contravene the repealed Act. 152 Undertakings relating to pre-commencement conduct (1) An undertaking given by a person to the chief executive under the repealed Act continues to be a valid undertaking under this Act according to its terms. Page 91 aA BW NR OOon Dd 11 1316 18 202328 Agents Financial Administration Bill 2010 Part 12 Transitional provisions [s 153] (2) The provisions of this Act relating to undertakings apply to an undertaking continued under subsection (1). (3) Ifthe chief executive reasonably believes a person has, before the commencement, contravened or been involved in a contravention of the repealed Act, section 124 of this Act applies as if a reference in that section to this Act were a reference to the repealed Act. 153 Continuation of register of undertakings The register of undertakings kept under the repealed Act is continued in existence and taken to be the register of undertakings under this Act. 154 Existing approved financial institutions A financial institution that was an approved financial institution under the repealed Act immediately before the commencement, is taken to be an approved financial institution under this Act. 155 Existing agreements with financial institutions (1) This section applies to an agreement entered into between the chief executive and an approved financial institution under the repealed Act about the keeping of general trust accounts by licensees. (2) The agreement is taken to be an agreement entered into between the chief executive and a financial institution about the keeping of general trust accounts by licensees under this Act. 156 Existing trust accounts A general trust account or special trust account opened under the repealed Act is taken to be a general trust account or special trust account under this Act. Page 92 NAYDNBRW NK 101416 1921 2325 28 Agents Financial Administration Bill 2010 Part 12 Transitional provisions [s 157] Existing auditors (1) (2) This section applies if, immediately before the commencement, a person was an approved auditor for a stated licensee under the repealed Act, section 394. The person is taken to be an auditor under this Act. New auditors (1) This section applies if a person had applied to the chief (2) (3) executive to be an approved auditor for a licensee and the application had not been decided immediately before commencement. The repealed Act applies to the application as if it had not been repealed. If the application is approved under the repealed Act, section 394, the person is taken to be an auditor under this Act. Existing audits (1) (2) This section applies if an audit had been commenced under the repealed Act and the audit had not been completed immediately before commencement. The requirements for audits under the repealed Act continue to apply. Existing disputes about trust money (1) (2) A dispute about trust money arising prior to the commencement is taken to be a dispute arising under this Act. For subsection (1), a written notice given or anything done or given under the repealed Act is taken to be a notice given or something done or given under this Act. Page 93 nA BWN Oona 12 14 1720 23 25 Agents Financial Administration Bill 2010 Part 12 Transitional provisions [s 161] Page 94 Existing receivers (1) (2) A receiver over property appointed by the chief executive under the repealed Act is taken to be a receiver over the property appointed under this Act. If the receiver appointed by the chief executive is in possession of the property immediately before the commencement, the receiver is taken to be in possession of the property under this Act. Receivership property (1) (2) This section applies if an order was made under the repealed Act immediately before commencement for a person in possession of receivership property to give possession of it to a receiver. The order is taken to have been made under this Act. Proceedings for offences under the repealed Act (1) This section applies if a person is alleged to have committed an offence against any of the following provisions of the repealed Act before the commencement— (a) section 375(1) or (2), 376(1) or (2) or 377(2); (b) section 379, 380(2) or 381(1) or (2); (c) section 384(1) or (2), 385(1) or (4) or 386(1); (d) section 388, 389 or 390(2); (e) section 392(1), 396(2) or 397(2), (3) or (4); (f) section 402(2), 404 or 405(3); (g) section 406(2), 407(1) or 413(1) or (4); (h) section 414, 420(5), 422(2); (i) — section 426; 428 or 436(2), (3) or (5); G) section 443(1), 475(2) or (5) or 493; (k) _ section 495(2), 529A(6) or 558; OADM BWN 1113 172022242628 Agents Financial Administration Bill 2010 Part 12 Transitional provisions [s 164] (1) section 580, 582(1), 583(1) or (3) or 591(2). (2) Without limiting the Acts Interpretation Act 1954, section 20, the following applies as if the repealed Act had not been repealed— (a) proceedings for the offence may be started, continued or completed under the repealed Act; and (b) a court may hear and decide the proceedings under the repealed Act; and (c) any document relevant to the proceedings and given evidentiary effect under the repealed Act continues to have the evidentiary effect. (3) Subsection (2) applies despite the Criminal Code, section 11. 164 Existing delegations If a person was delegated a power of the chief executive under section 597 of the repealed Act and the delegation was in force immediately before the commencement, the person is taken to have been delegated the equivalent power under this Act. Page 95 oCrN DN BWN ero a) = N 1517 Agents Financial Administration Bill 2010 Schedule Schedule Dictionary Page 96 section 6 account, for part 4, see section 38. Agents Acts means any or all of the following Acts— (a) Commercial Agents Act 2010; (b) Motor Dealers and Chattel Auctioneers Act 2010; (c) Property Agents Act 2010. approved financial institution means a financial institution that has entered into an agreement with the chief executive under section 78. arrangement includes agreement, promise, scheme, transaction (with or without consideration), understanding and undertaking (whether express or implied). audit month, for part 3, division 3, see section 30. auditor, for part 3, see section 25. audit period, for part 3, division 3, see section 30. audit report, for part 3, division 3, see section 30. business address means— (a) for a licensee carrying on business under a license—the address where the activities under the license are performed; or (b) for a licensee who is in charge of another licensee's business—the address of the place of business where the licensee is to be in charge. claimant, for part 7, see section 79. claim fund means the claim fund established under section 76. claim notice, for part 7, see section 79. om nN DN FW 121517202327 Agents Financial Administration Bill 2010 Schedule conviction includes a plea of guilty or a finding of guilt by a court, but does not include a plea of guilty or a finding of guilt by a court if no conviction is recorded by the court. defalcation, for part 4, see section 38. employ includes engage on a contract for services or commission and use the services of, whether or not for reward. executive officer, for a corporation, means any person, by whatever name called and whether or not the person is a director of the corporation, who is concerned, or takes part, in the management of the corporation. financial loss, for part 7, see section 79. former licensee means a person who held a licence under this or the repealed Act. fund means the claim fund. holder— (a) of an account, for part 4, see section 38; or (b) of a licence, means the person in whose name the licence is issued. in charge see section 7. information notice means a notice complying with the QCAT Act, section 157(2). inspector means a person holding an appointment as an inspector under the provisions continued in force under the Property Agents Act 2010, section 292. licence means a licence issued under an Agents Act. licensed, for a person, means licensed under an Agents Act. licensee— (a) generally, means the holder of a licence under an Agents Act, that is in force; and (b) for part 4, see section 38; and (c) for part 7, see section 79. Page 97 Om NDN BP WNe —_ re oO a N elon RW Re ee ND WN ee \o 0 N oO NN Ne NNN Nn BW NH NY N ona Wn cw WwW WW Ne Agents Financial Administration Bill 2010 Schedule Page 98 marketeering contravention, for part 7, see section 79. minor claim, against the fund, means a claim of not more than $10000. misleading includes deceptive. money, for part 4, see section 38. non-investment residential property, for part 7, see section 80. obstruct includes hinder, delay and attempt to obstruct. on-sale see section 100(1). principal licensee means a licensee that carries on business under the licensee's licence on the licensee's own behalf. receivership property, for part 4, see section 38. registered office see section 79. registrar means the principal registrar under the QCAT Act. relevant person, for part 7, see section 79. repealed Act means the Property Agents and Motor Dealers Act 2000. representation includes a statement, promise, publication and other representation made in any way. respondent— (a) for part 7, see section 79; and (b) for part 9, see section 118. reward includes remuneration of any kind including, for example, any fee, commission or gain. sell includes agree to sell, advertise or display for sale, attempt to sell, have for sale, negotiate for a sale, and in any way be concerned in selling. trust account— (a) generally, means a trust account kept under this Act; and (b) for part 3, division 3, see section 30. eCoANID Nn BP WN \o ao a) Ee eS eS eS an B&B WN Ree ND eR Oo oo NO NY N NF oO NN BW NNN NNN WN N Coo Ww Agents Financial Administration Bill 2010 Schedule trust money, for part 4, see section 38. trust property, for part 4, see section 38. © State of Queensland 2010 Page 99