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Queensland
Agents Financial
Administration Bill 2013
Queensland
Agents Financial Administration Bill 2013
Contents
Page
Part 1 Preliminary
Division 1 Introduction
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4 Exemption--public officials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5 Relationship with Fair Trading Inspectors Act 2013 . . . . . . . . . . . 11
Division 2 Object
6 Main object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Division 3 Interpretation
7 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8 Meaning of agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Part 2 Trust accounts
Division 1 Opening and keeping trust accounts
9 Who may open trust account . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10 Application and grant of authority to open a trust account--
collection agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11 Requirements for opening and keeping trust accounts . . . . . . . . 14
12 Account's name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
13 Notice of account's opening, closing or name change . . . . . . . . . 15
14 Agreements with financial institutions . . . . . . . . . . . . . . . . . . . . . 16
Division 2 Payments to trust accounts
15 Application of ss 15 and 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
16 Dealing with amount on receipt . . . . . . . . . . . . . . . . . . . . . . . . . . 17
17 Investments--property agents . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
18 No other payments to trust account . . . . . . . . . . . . . . . . . . . . . . . 18
19 Multiple trust accounts not required . . . . . . . . . . . . . . . . . . . . . . . 18
Agents Financial Administration Bill 2013
Contents
20 Trust money not available to agent's creditors . . . . . . . . . . . . . . . 19
Division 3 Payments from trust accounts
21 When payments may be made from trust accounts . . . . . . . . . . . 19
22 Permitted drawings from trust accounts . . . . . . . . . . . . . . . . . . . . 19
Division 4 Other trust account obligations
23 Accounting to clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
24 Duties of financial institution managers . . . . . . . . . . . . . . . . . . . . 21
Division 5 Disputes about trust money
25 Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
26 When amount in dispute may be paid . . . . . . . . . . . . . . . . . . . . . 23
27 Where amount must be paid if notice given . . . . . . . . . . . . . . . . . 23
28 Dealing with amount if no notice . . . . . . . . . . . . . . . . . . . . . . . . . 24
Part 3 Audit requirements
Division 1 Preliminary
29 Definition for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Division 2 Provisions about auditors
30 Agent must appoint auditor and notify chief executive . . . . . . . . . 25
31 Steps to be taken if auditor's appointment ends. . . . . . . . . . . . . . 25
32 Chief executive may make information available to supervisory
bodies ........................................ 26
Division 3 Audit of trust accounts
33 Definitions for div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
34 What trust accounts must be audited . . . . . . . . . . . . . . . . . . . . . . 28
35 Time for audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
36 Auditors--functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
37 Auditor's advice to chief executive . . . . . . . . . . . . . . . . . . . . . . . . 29
38 Auditor may ask agent to produce other accounts . . . . . . . . . . . . 30
39 Audit on ceasing to be principal agent . . . . . . . . . . . . . . . . . . . . . 30
40 Audit reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Part 4 Directions about trust accounts and appointing receivers
and special investigators
Division 1 Definitions
41 Definitions for pt 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Division 2 Giving directions about agents' accounts
42 Chief executive may give directions about agent's accounts in
particular cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
43 Account not to be operated unless chief executive allows . . . . . . 36
Page 2
Agents Financial Administration Bill 2013
Contents
44 Financial institution must comply with direction . . . . . . . . . . . . . . 36
45 Person may ask QCAT to review chief executive's decision . . . . . 37
46 Withdrawal of direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Division 3 Receivers
Subdivision 1 Appointment
47 When receiver may be appointed. . . . . . . . . . . . . . . . . . . . . . . . . 38
48 Trust property over which receiver may be appointed . . . . . . . . . 39
49 Who may be appointed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
50 How receivers are appointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Subdivision 2 Receiver's functions and powers
51 Receivers--functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
52 Requiring information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
53 Possession of receivership property. . . . . . . . . . . . . . . . . . . . . . . 41
54 Orders for possession of receivership property . . . . . . . . . . . . . . 42
55 Enforcing orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
56 Improperly withdrawing, destroying or concealing receivership
property ........................................ 43
57 Dealing with receivership property . . . . . . . . . . . . . . . . . . . . . . . . 43
58 Obstructing receivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Subdivision 3 Distributing receivership property
59 Notice to claimants against receivership property . . . . . . . . . . . . 44
60 Access to documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
61 Deciding claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
62 Payment of claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
63 Money not dealt with by receiver . . . . . . . . . . . . . . . . . . . . . . . . . 47
Subdivision 4 Recovery of receivers' remuneration and costs
64 Recovery of remuneration and costs . . . . . . . . . . . . . . . . . . . . . . 48
Subdivision 5 Ending receivership
65 Ending receiver's appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
66 Dealing with receivership property when appointment ends . . . . 49
67 Returns by receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Subdivision 6 Miscellaneous
68 Receiver not personal representative. . . . . . . . . . . . . . . . . . . . . . 51
69 Receivership property free from execution or attachment . . . . . . 51
Division 4 Special investigators
70 Appointment of special investigator . . . . . . . . . . . . . . . . . . . . . . . 51
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Agents Financial Administration Bill 2013
Contents
71 Special investigators--functions. . . . . . . . . . . . . . . . . . . . . . . . . . 52
72 Special investigators--powers . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
73 Agent must comply with special investigator's lawful requests. . . 52
74 Reports to chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
75 Recovery of remuneration and costs . . . . . . . . . . . . . . . . . . . . . . 53
76 Ending special investigator's appointment . . . . . . . . . . . . . . . . . . 53
Part 5 Jurisdiction of QCAT
77 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Part 6 Claim fund
78 Claim fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
79 How fund may be applied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Part 7 Claims against the fund
Division 1 Preliminary
80 Definitions for pt 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
81 What is the purchase of a non-investment residential property . . 58
Division 2 Persons who may claim
82 Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
83 Claim may be made whether or not claim made against receiver 60
84 Persons who can not claim generally . . . . . . . . . . . . . . . . . . . . . . 60
85 General time limit for making claims. . . . . . . . . . . . . . . . . . . . . . . 62
86 Time limit for making particular claims relating to marketeering
contraventions and non-investment residential property . . . . . . . 62
87 Time limit for a claim notified by receiver . . . . . . . . . . . . . . . . . . . 63
Division 3 Making and dealing with claims
88 Making claims other than particular claims relating to
marketeering contraventions and non-investment residential
property ......................................... 63
89 Making particular claims relating to marketeering
contraventions and non-investment residential property . . . . . . . 64
90 Invalid claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
91 Chief executive to give respondent notice of claim. . . . . . . . . . . . 65
92 Corporation to give notices relating to claim . . . . . . . . . . . . . . . . 66
93 Dealing with claims that have not settled . . . . . . . . . . . . . . . . . . . 67
94 Inspector may investigate claims and report and related
documents may be referred to QCAT . . . . . . . . . . . . . . . . . . . . . . 67
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Agents Financial Administration Bill 2013
Contents
Division 4 Deciding claims
Subdivision 1 Who decides claim
95 Chief executive may decide or refer claim . . . . . . . . . . . . . . . . . . 68
Subdivision 2 Procedure for chief executive to decide claims
96 Chief executive must invite comments about inspector's report . . 68
97 Amendment of claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
98 Requiring information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
99 Respondent fails to respond to claim . . . . . . . . . . . . . . . . . . . . . . 70
100 Deciding claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
101 Chief executive's decision binds the parties and no extension of
time is allowed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
102 Notifying decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
103 Party may ask QCAT to review chief executive's decision . . . . . . 72
104 Public access to information about decisions. . . . . . . . . . . . . . . . 73
Division 5 QCAT proceedings
105 Deciding claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
106 Orders QCAT may make on claim hearing . . . . . . . . . . . . . . . . . . 73
107 QCAT to give chief executive final decision or notify chief
executive of appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
108 Application of QCAT Act, s 131 . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Division 6 Deciding financial loss for non-investment residential
property
109 Application of div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
110 General test for working out loss . . . . . . . . . . . . . . . . . . . . . . . . . 75
111 Adjustment for on-sale not at market value . . . . . . . . . . . . . . . . . 75
Part 8 Payments from the fund
Division 1 Payment and recovery of claims
112 Payment of claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
113 Limits on recovery from fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
114 Notice of other recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Division 2 Special payments
115 Chief executive may make special payment. . . . . . . . . . . . . . . . . 78
Division 3 Liability for payments
116 Liability for payment from the fund . . . . . . . . . . . . . . . . . . . . . . . . 78
Division 4 Applications for reimbursement orders
117 Application for reimbursement order . . . . . . . . . . . . . . . . . . . . . . 79
118 Respondent to be advised of application . . . . . . . . . . . . . . . . . . . 81
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Contents
119 Reimbursement orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Division 5 Other reimbursements to fund
120 Recovery of payments--general . . . . . . . . . . . . . . . . . . . . . . . . . 83
121 Recovery of overpayments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Part 9 Other matters for proceedings relating to fund
122 QCAT may extend time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
123 Chief executive may make submissions . . . . . . . . . . . . . . . . . . . . 85
124 Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Part 10 Injunctions and undertakings
Division 1 Injunctions
125 Grounds for injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
126 Who may apply for injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
127 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
128 Court's powers for injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
129 Terms of injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
130 Undertakings as to costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Division 2 Undertakings
131 Chief executive may seek undertaking after contravention . . . . . 88
132 Undertaking about other matter . . . . . . . . . . . . . . . . . . . . . . . . . . 88
133 Variation and withdrawal of undertakings . . . . . . . . . . . . . . . . . . . 88
134 Enforcement of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
135 Register of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Part 11 General contraventions, evidentiary matters and legal
proceedings
Division 1 General contraventions
136 Offence to deal with trust account . . . . . . . . . . . . . . . . . . . . . . . . 91
137 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . 91
138 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Division 2 Evidentiary matters
139 Evidentiary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
140 Entries in agent's documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Division 3 Proceedings
141 Stopping contraventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
142 Proceedings for an offence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
143 Responsibility for acts or omissions of representatives . . . . . . . . 96
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Agents Financial Administration Bill 2013
Contents
144 Chief executive's right of appeal against decision of QCAT or
appeal tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
145 Power of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
146 Allegations of false or misleading representations or statements
etc. ........................................... 98
Part 12 General
147 Application of particular provisions to appointees under an Agents Act
98
148 Public warning statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
149 Civil remedies not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
150 Criminal Proceeds Confiscation Act 2002 not limited. . . . . . . . . . 99
151 Delegation--chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
152 Approved forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
153 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Part 13 Transitional provisions
154 Definition for pt 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
155 Claim fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
156 Existing special investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
157 Continuation of reviews under the repealed Act . . . . . . . . . . . . . . 101
158 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
159 Injunctions relating to pre-commencement conduct . . . . . . . . . . . 102
160 Undertakings relating to pre-commencement conduct. . . . . . . . . 103
161 Continuation of register of undertakings. . . . . . . . . . . . . . . . . . . . 103
162 Existing approved financial institutions. . . . . . . . . . . . . . . . . . . . . 103
163 Existing agreements with financial institutions . . . . . . . . . . . . . . . 104
164 Existing trust accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
165 Existing auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
166 New approved auditors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
167 Existing audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
168 Existing disputes about trust money. . . . . . . . . . . . . . . . . . . . . . . 105
169 Existing receivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
170 Receivership property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
171 Proceedings for offences under the repealed Act . . . . . . . . . . . . 106
172 Existing delegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Schedule 1 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Page 7
2013
A Bill
for
An Act to provide for the administration of trust accounts held
by agents regulated under the Debt Collectors (Field Agents
and Collection Agents) Act 2013, the Motor Dealers and Chattel
Auctioneers Act 2013 and the Property Occupations Act 2013,
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 2013
Part 1 Preliminary
[s 1]
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
Division 1 Introduction 3
1 Short title 4
This Act may be cited as the Agents Financial Administration 5
Act 2013. 6
2 Commencement 7
This Act commences on a day to be fixed by proclamation. 8
3 Act binds all persons 9
(1) This Act binds all persons, including the State, and, so far as 10
the legislative power of Parliament permits, the 11
Commonwealth and the other States. 12
(2) Nothing in this Act makes the State, the Commonwealth or 13
any other State liable to be prosecuted for an offence. 14
4 Exemption--public officials 15
(1) This Act does not apply to a prescribed officer for trust 16
moneys for which the prescribed officer is responsible, if 17
another Act makes provision for the way the prescribed 18
officer is required to deal with moneys held by the officer in 19
trust. 20
(2) In this section-- 21
prescribed officer means-- 22
Page 10
Agents Financial Administration Bill 2013
Part 1 Preliminary
[s 5]
(a) an accountable officer under the Financial 1
Accountability Act 2009; or 2
(b) a public service officer. 3
5 Relationship with Fair Trading Inspectors Act 2013 4
(1) The Fair Trading Inspectors Act 2013 (the FTI Act) enacts 5
common provisions for this Act and particular other Acts 6
about fair trading. 7
(2) Unless this Act otherwise provides in relation to the FTI Act, 8
the powers that an inspector has under that Act are in addition 9
to and do not limit any powers the inspector has under this 10
Act. 11
Division 2 Object 12
6 Main object 13
(1) The main object of this Act is to protect consumers from 14
financial loss in dealings with agents regulated under an 15
Agents Act. 16
(2) The object is to be achieved mainly by-- 17
(a) regulating the way agents establish, manage and audit 18
trust accounts; and 19
(b) establishing a claim fund to compensate persons in 20
particular circumstances for financial loss arising from 21
dealings with agents; and 22
(c) promoting administrative efficiency for claims made 23
against the claim fund. 24
Page 11
Agents Financial Administration Bill 2013
Part 2 Trust accounts
[s 7]
Division 3 Interpretation 1
7 Definitions 2
The dictionary in schedule 1 defines particular words used in 3
this Act. 4
8 Meaning of agent 5
An agent is a person who is either or both of the following-- 6
(a) a licensee; 7
(b) a collection agent. 8
Part 2 Trust accounts 9
Division 1 Opening and keeping trust 10
accounts 11
9 Who may open trust account 12
A person must not open an account purporting to be a general 13
trust account or special trust account under this part unless the 14
person is a principal agent. 15
Maximum penalty--200 penalty units. 16
10 Application and grant of authority to open a trust 17
account--collection agents 18
(1) Before opening a trust account under this part, a collection 19
agent must apply, in the approved form, to the chief executive 20
for an authority to open the account. 21
Maximum penalty--200 penalty units. 22
Page 12
Agents Financial Administration Bill 2013
Part 2 Trust accounts
[s 10]
(2) The application must be accompanied by the amount required 1
for obtaining a criminal history report about the collection 2
agent under the Debt Collectors (Field Agents and Collection 3
Agents) Act 2013, section 106. 4
(3) The chief executive must decide to grant the authority if the 5
chief executive considers the applicant is a suitable person to 6
open a trust account. 7
(4) In considering whether an applicant is a suitable person to 8
open a trust account, the chief executive must have regard to 9
the matters relating to the suitability of the applicant to 10
perform a debt collection activity under the Debt Collectors 11
(Field Agents and Collection Agents) Act 2013, as stated in 12
section 102 or 103 of that Act. 13
(5) The chief executive must-- 14
(a) give the applicant written notice of the chief executive's 15
decision about the application; and 16
(b) if the decision is to refuse the application--give the 17
applicant an information notice complying with the 18
QCAT Act, section 157(2) for the decision. 19
(6) If the chief executive decides to refuse the application, the 20
applicant can not make another application under this section 21
for 3 months after the day the chief executive gives the 22
applicant the information notice under subsection (5)(b) for 23
the decision. 24
(7) However, subsection (6) does not apply if-- 25
(a) the applicant is a corporation; and 26
(b) the applicant satisfies the chief executive that, because 27
of a genuine sale-- 28
(i) no person who was a shareholder of, or held a 29
beneficial interest in, the corporation when the 30
refused application was made is a shareholder of, 31
or holds a beneficial interest in, the applicant 32
corporation; and 33
(ii) no person who was in a position to control or 34
influence the affairs of the corporation when the 35
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Part 2 Trust accounts
[s 11]
refused application was made is in a position to 1
control or influence the affairs of the applicant 2
corporation. 3
11 Requirements for opening and keeping trust accounts 4
(1) An agent must not open a general trust account or special trust 5
account at a place other than the office or branch of an 6
approved financial institution within the State. 7
Maximum penalty--200 penalty units. 8
Note-- 9
A special trust account is a trust account created under section 17 in 10
which an amount is held for investment at the direction of both parties to 11
a sale. 12
(2) Before opening a general trust account or special trust account 13
the agent must give the manager or other officer in charge of 14
the financial institution's office or branch-- 15
(a) if the person is a licensee--a copy of the licensee's 16
licence; or 17
(b) if the person is a collection agent--a copy of the 18
collection agent's authority to open the account granted 19
under section 10. 20
Maximum penalty--200 penalty units. 21
(3) Subsection (4) applies if-- 22
(a) a collection agent who is not a licensee keeps a general 23
trust account at a financial institution under this part; 24
and 25
(b) the collection agent becomes a licensee; and 26
(c) the collection agent intends to continue using the agent's 27
existing general trust account for transactions carried 28
out under the licence. 29
(4) The agent must, within 7 days after receiving the licence, give 30
the manager or other officer in charge of the financial 31
institution's office or branch a copy of the licence. 32
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[s 12]
Maximum penalty--200 penalty units. 1
12 Account's name 2
(1) An agent opening a general trust account must ensure the 3
account's name includes the words `trust account'. 4
Maximum penalty--200 penalty units. 5
(2) A licensee opening a special trust account must ensure the 6
account's name includes the words `special trust account'. 7
Maximum penalty--200 penalty units. 8
13 Notice of account's opening, closing or name change 9
(1) This section applies if an agent does any of the following 10
(each an event)-- 11
(a) opens a general trust account; 12
(b) if the agent is a property agent--opens a special trust 13
account; 14
(c) changes the name of a general trust account or special 15
trust account; 16
(d) closes a general trust account or special trust account. 17
(2) The agent must give the chief executive written notice under 18
subsection (3) of the happening of the event within 2 months 19
of its happening. 20
Maximum penalty--200 penalty units. 21
(3) The written notice must state-- 22
(a) whether the account is a general trust account or special 23
trust account; and 24
(b) the name of the financial institution where the account is 25
or was kept; and 26
(c) the account name; and 27
(d) the identifying number of the financial institution; and 28
Note-- 29
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Part 2 Trust accounts
[s 14]
This is commonly referred to as the bank state branch number 1
(BSB). 2
(e) the account number. 3
14 Agreements with financial institutions 4
(1) The chief executive may enter into an agreement for the State 5
with a financial institution about the keeping of general trust 6
accounts by agents. 7
(2) The chief executive may enter into an agreement only with the 8
Minister's approval. 9
(3) The agreement may provide for the following things-- 10
(a) payment of interest on the whole or part of amounts held 11
in agents' general trust accounts to the consolidated 12
fund; 13
(b) informing the chief executive of amounts held in agents' 14
general trust accounts; 15
(c) auditing agents' general trust accounts; 16
(d) other things concerning agents' general trust accounts. 17
(4) A financial institution may pay interest to the consolidated 18
fund under an agreement. 19
Division 2 Payments to trust accounts 20
15 Application of ss 15 and 16 21
(1) Sections 16 and 17 apply if an amount is received by an 22
agent-- 23
(a) for a transaction; or 24
(b) with a written direction for its use. 25
Example of paragraph (b)-- 26
an amount received by a property agent with a written direction 27
to use it for advertising or marketing by the property agent or 28
another person 29
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Part 2 Trust accounts
[s 16]
(2) In this section-- 1
amount, received by an agent for a transaction-- 2
(a) includes deposit and purchase monies for the 3
transaction; but 4
(b) does not include an amount payable to the agent for the 5
transaction in refund of an expense the agent was 6
authorised to incur and did incur and for which the agent 7
holds a receipt. 8
16 Dealing with amount on receipt 9
An agent must, before the end of the first business day after 10
receiving the amount-- 11
(a) pay it to the agent's general trust account; or 12
Example-- 13
A licensee who collects an amount of rent for a property owner 14
must pay the amount to the licensee's general trust account 15
before the money can be paid from the account under section 22. 16
(b) if section 17(1) applies, invest it under section 17(2). 17
Maximum penalty--200 penalty units or 2 years 18
imprisonment. 19
17 Investments--property agents 20
(1) A property agent under the Property Occupations Act 2013 21
may invest an amount under subsection (2) if-- 22
(a) the agent receives the amount for a sale; and 23
(b) the sale is to be completed on a day that is-- 24
(i) stated in the contract or ascertainable on the day 25
the contract is entered into; and 26
(ii) more than 60 days after the amount is received; 27
and 28
(c) the amount is received with a direction from all parties 29
to the sale that it be invested. 30
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(2) The agent must pay the amount as required by the direction to 1
a special trust account with a branch of a financial institution 2
within the State operated for the investment of the amount. 3
Maximum penalty for subsection (2)--200 penalty units or 2 4
years imprisonment. 5
18 No other payments to trust account 6
(1) An agent must not pay to a trust account an amount other than 7
an amount that must be paid to the account under section 16 or 8
17. 9
Maximum penalty--200 penalty units or 1 year's 10
imprisonment. 11
(2) However, if the agent receives an amount consisting of trust 12
money and other money (the non-trust money) that can not be 13
divided, the agent must-- 14
(a) pay the whole amount to the agent's general trust 15
account; and 16
(b) draw the non-trust money from the account within 14 17
days after the money becomes available for drawing. 18
Example of amount consisting of trust money and non-trust money-- 19
A property agent receives a single cheque for rent and services provided 20
by the property agent, including, for example, television rental. 21
Maximum penalty--200 penalty units or 1 year's 22
imprisonment. 23
19 Multiple trust accounts not required 24
(1) A licensee who holds more than 1 licence is not required to 25
keep a general trust account for each licence. 26
(1) Also, a collection agent who holds 1 or more licenses is only 27
required to keep 1 general trust account for activities 28
performed as a collection agent and activities performed 29
under the agent's licence. 30
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Part 2 Trust accounts
[s 20]
20 Trust money not available to agent's creditors 1
An amount paid, or required to be paid, to a trust account 2
under this division can not be-- 3
(a) used for payment of the debt of a creditor of an agent; or 4
(b) attached or taken in execution under a court order or 5
process by a creditor. 6
Division 3 Payments from trust accounts 7
21 When payments may be made from trust accounts 8
(1) An amount paid to a trust account must be kept in the account 9
until it is paid out under this Act. 10
Maximum penalty--200 penalty units or 2 years 11
imprisonment. 12
(2) An amount may be paid from a trust account only in a way 13
permitted under this Act. 14
Maximum penalty--200 penalty units or 2 years 15
imprisonment. 16
22 Permitted drawings from trust accounts 17
(1) An agent may draw an amount from the agent's trust account 18
to pay the agent's transaction fee or transaction expenses for a 19
transaction only if-- 20
(a) the amount is drawn against the transaction fund for the 21
transaction; and 22
(b) the agent is authorised to draw the amount under this 23
section. 24
Maximum penalty--200 penalty units or 2 years 25
imprisonment. 26
(2) The agent is authorised to draw an amount from the 27
transaction fund to pay a transaction expense when the 28
expense becomes payable. 29
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Part 2 Trust accounts
[s 22]
(3) After the transaction is finalised, the agent is authorised-- 1
(a) to draw an amount from the transaction fund to pay the 2
person entitled to the amount, or someone else in 3
accordance with the person's written direction, that is 4
equal to the difference between-- 5
(i) the balance of the transaction fund; and 6
(ii) the total of the agent's transaction fee and any 7
outstanding transaction expense; and 8
(b) after the amount, if any, mentioned in paragraph (a) has 9
been paid--to draw the agent's transaction fee from the 10
transaction fund. 11
Example of when a transaction is finalised-- 12
the settlement of a contract for the sale of property or the termination of 13
the contract 14
(4) For subsection (3)(a) or (b), if a dispute about the transaction 15
fund arises, the transaction is not taken to be finalised until the 16
agent is authorised to pay out the transaction fund under 17
section 26. 18
(5) The agent must pay an amount mentioned in subsection (3)(a) 19
to the person entitled to it, or someone else in accordance with 20
the person's written direction-- 21
(a) if the person asks, in writing, for the balance--within 14 22
days after receiving the request; or 23
(b) if the person has not asked, in writing, for the 24
balance--within 42 days after the transaction is 25
finalised. 26
Maximum penalty--200 penalty units or 2 years 27
imprisonment. 28
(6) In this section-- 29
transaction expense means an expense an agent is authorised 30
to incur in connection with the performance of the agent's 31
activities for a transaction. 32
transaction fee means fees, charges and commission payable 33
for the performance of an agent's activities for a transaction. 34
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Part 2 Trust accounts
[s 23]
transaction fund means an amount held in an agent's trust 1
account for a transaction. 2
Division 4 Other trust account obligations 3
23 Accounting to clients 4
(1) An agent must account as required under this section to a 5
client who appoints the agent to perform an activity, for all 6
amounts received for a transaction, including an amount 7
mentioned in subsection (2)(c). 8
Maximum penalty--200 penalty units or 2 years 9
imprisonment. 10
(2) The account must be in writing and state-- 11
(a) the amounts received for the transaction; and 12
(b) how the amounts were or are to be paid out; and 13
(c) the source and the amount of any rebate, discount, 14
commission or benefit the agent received-- 15
(i) for any expenses the agent incurred for the client in 16
connection with the performance of a service; or 17
(ii) for referring the client to someone else for services 18
relating to the transaction. 19
(3) The agent must give the client the account-- 20
(a) if the client asks, in writing, for the account--within 14 21
days after receiving the request; or 22
(b) if the client has not asked, in writing, for the 23
account--within 42 days after the transaction is 24
finalised. 25
24 Duties of financial institution managers 26
(1) The manager or principal officer of an office or branch of a 27
financial institution where trust money has been deposited, 28
whether to a trust account or another account, must-- 29
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Part 2 Trust accounts
[s 25]
(a) allow an inspector, on written demand signed by the 1
inspector, to inspect and copy documents relating to the 2
account; and 3
(b) immediately an agent's trust account is overdrawn, 4
inform the chief executive of that fact; and 5
(c) immediately there is insufficient money in an agent's 6
trust account to meet a cheque drawn on the account, 7
inform the chief executive of-- 8
(i) the amount for which the cheque is drawn; and 9
(ii) the amount in the account. 10
Maximum penalty--200 penalty units or 1 year's 11
imprisonment. 12
(2) In this section-- 13
agent includes-- 14
(a) a former agent; and 15
(b) a person who is not licensed, but who acts as a licensee. 16
trust money includes-- 17
(a) an amount that, under section 16, is required to be 18
deposited to an agent's trust account; and 19
(b) an instrument for the payment of an amount mentioned 20
in paragraph (a) if the instrument may be paid into a 21
financial institution; and 22
(c) a security for an amount mentioned in paragraph (a) if 23
title to the security is transferable by delivery. 24
Division 5 Disputes about trust money 25
25 Application of div 5 26
(1) This division applies if-- 27
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Part 2 Trust accounts
[s 26]
(a) an agent holds a transaction fund for a transaction under 1
section 22; and 2
(b) before the transaction fund is paid out under section 22, 3
the agent receives written notice from a party to the 4
transaction that ownership of the fund or part of the fund 5
is in dispute (the amount in dispute). 6
(2) In this section-- 7
party, to a transaction, does not include an agent acting for a 8
party to the transaction. 9
26 When amount in dispute may be paid 10
The agent must not pay out the amount in dispute unless the 11
agent-- 12
(a) receives written notice-- 13
(i) from all parties to the transaction stating the person 14
who is entitled to the amount in dispute; or 15
(ii) a legal proceeding has been started in a court to 16
decide who is entitled to the amount in dispute; or 17
(b) pays the amount under section 28(3). 18
Maximum penalty--200 penalty units or 2 years 19
imprisonment. 20
27 Where amount must be paid if notice given 21
The agent must pay the amount in dispute immediately-- 22
(a) if notice under section 26(a)(i) is received--to the 23
person stated to be entitled to the amount or in 24
accordance with the person's direction; or 25
(b) if notice under section 26(a)(ii) is received--to the court 26
in which the proceeding was started. 27
Maximum penalty--200 penalty units or 2 years 28
imprisonment. 29
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Part 3 Audit requirements
[s 28]
28 Dealing with amount if no notice 1
(1) This section applies if the agent does not receive a notice 2
under section 26 within 30 days after receiving notice of the 3
dispute. 4
(2) The agent must, within 7 days after the end of the 30 day 5
period, give all parties to the transaction a written notice 6
stating that-- 7
(a) the agent will, within 30 days after the notice is given, 8
pay the amount in dispute to a stated person whom the 9
agent believes is entitled to receive it if the agent has not 10
received a notice under section 26; or 11
(b) the agent can not decide who is entitled to the amount 12
and is keeping it in the agent's trust account until the 13
agent receives notice under section 26. 14
Maximum penalty--200 penalty units or 2 years 15
imprisonment. 16
(3) The agent may pay the amount to the person stated in a notice 17
given under subsection (2)(a) if, within 30 days after the 18
notice is given, the agent does not receive a notice under 19
section 25. 20
Part 3 Audit requirements 21
Division 1 Preliminary 22
29 Definition for pt 3 23
In this part-- 24
auditor means a person who is-- 25
(a) registered as an auditor under the Corporations Act; or 26
Note-- 27
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Part 3 Audit requirements
[s 30]
See the Corporations Act, section 1274AA (Register of 1
disqualified company directors and other officers). 2
(b) a member of CPA Australia who is entitled to use the 3
letters `CPA' or `FCPA'; or 4
(c) a member of the Institute of Chartered Accountants in 5
Australia who is entitled to use the letters `CA' or 6
`FCA'; or 7
(d) a member of the Institute of Public Accountants who is 8
entitled to use the letters `MIPA' or `FIPA'. 9
Division 2 Provisions about auditors 10
30 Agent must appoint auditor and notify chief executive 11
(1) An agent must, within 1 month after opening a trust account, 12
appoint an auditor to audit the trust account kept or to be kept 13
by the agent. 14
Maximum penalty--200 penalty units or 1 year's 15
imprisonment. 16
(2) The agent must, within 1 month after the appointment, give 17
the chief executive-- 18
(a) written notice of the auditor's name and address; and 19
(b) evidence the auditor has accepted the appointment. 20
Maximum penalty--200 penalty units. 21
31 Steps to be taken if auditor's appointment ends 22
(1) If an agent's auditor resigns or the agent ends the auditor's 23
appointment, both the auditor and the agent must immediately 24
notify the chief executive of-- 25
(a) the resignation or ending of the appointment; and 26
(b) the reasons for it. 27
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Part 3 Audit requirements
[s 32]
(2) An auditor or agent who is required to give the chief executive 1
notice under subsection (1) and fails to give the notice 2
commits an offence. 3
Maximum penalty--200 penalty units. 4
(3) The agent must appoint another auditor and, unless the agent 5
has a reasonable excuse, within 1 month after the resignation 6
or ending of the appointment mentioned in subsection (1) 7
takes effect, give the chief executive-- 8
(a) written notice of the auditor's name and address; and 9
(b) evidence the auditor has accepted the appointment. 10
Maximum penalty--200 penalty units. 11
(4) If an agent's auditor dies, the agent must-- 12
(a) as soon as practicable after the agent becomes aware of 13
the death, notify the chief executive of the death; and 14
(b) unless the agent has a reasonable excuse, within 1 15
month after becoming aware of the death, appoint 16
another auditor and give the chief executive-- 17
(i) written notice of the auditor's name and address; 18
and 19
(ii) evidence the auditor has accepted the appointment. 20
Maximum penalty--200 penalty units. 21
32 Chief executive may make information available to 22
supervisory bodies 23
(1) The chief executive may report a matter about an auditor to 24
ASIC or a prescribed entity of which the auditor is a member 25
if the chief executive believes, on reasonable grounds, the 26
auditor-- 27
(a) has not audited an agent's trust accounts in accordance 28
with generally accepted standards of professional 29
competency; or 30
(b) has failed to detect or report material irregularities in the 31
operation of an agent's trust accounts; or 32
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Part 3 Audit requirements
[s 33]
(c) has not properly performed the auditor's functions under 1
this Act. 2
(2) The chief executive may make information in the chief 3
executive's possession available to the commission or entity 4
for an investigation conducted by the commission or entity. 5
(3) In this section-- 6
prescribed entity means CPA Australia, the Institute of 7
Chartered Accountants in Australia or the Institute of Public 8
Accountants. 9
Division 3 Audit of trust accounts 10
33 Definitions for div 3 11
In this division-- 12
agent includes a person who is an agent at the start of an audit 13
period, even if the person stops being an agent before the end 14
of the audit period. 15
audit month, for an agent, means-- 16
(a) if the agent is a licensee-- 17
(i) the eighth month after the month in which the 18
licence was first issued to the licensee and the 19
same month in each subsequent year; or 20
(ii) another month stated by the chief executive in a 21
written notice given to the licensee; or 22
Example of paragraph (a)(i)-- 23
If a licensee's licence was first issued to the licensee in 24
January, the audit month for the licensee's licence is 25
September. 26
(b) if the agent is a collection agent--the month of June. 27
audit period means-- 28
(a) the 12 month period in each year ending on the last day 29
of the audit month; or 30
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Part 3 Audit requirements
[s 34]
(b) another period decided by the chief executive, either 1
generally by gazette notice, or by written notice given to 2
an agent. 3
audit report, for an agent, means a report from the agent's 4
auditor under section 40. 5
trust account means a general trust account or a special trust 6
account. 7
34 What trust accounts must be audited 8
(1) An agent's trust accounts must be audited for each audit 9
period during which the agent carried on business as an agent 10
and operated a trust account. 11
(2) An agent's trust accounts need not be audited for an audit 12
period if the agent gives the chief executive a statutory 13
declaration that the agent did not operate a trust account 14
during the period. 15
35 Time for audit 16
(1) This section applies to an agent for each audit period for 17
which the agent's trust accounts must be audited. 18
(2) The agent must, within 4 months after the last day of the audit 19
month in each year or the extended period allowed by the 20
chief executive under subsection (3)-- 21
(a) have the agent's trust accounts for the last audit period 22
audited by the person's auditor; and 23
(b) file the agent's signed original audit report with the chief 24
executive. 25
Maximum penalty--200 penalty units or 2 years 26
imprisonment. 27
Note-- 28
The auditor must give the agent a signed original audit report under 29
section 40 (Audit reports). 30
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Part 3 Audit requirements
[s 36]
(3) The chief executive may extend the time mentioned in 1
subsection (2) if the agent or the agent's auditor applies in 2
writing to the chief executive for the extension. 3
(4) The application must state the grounds on which the extension 4
is sought. 5
(5) If the agent is charged with an offence relating to a failure to 6
file an audit report, it does not matter that the contravention 7
happened without the agent's authority or contrary to the 8
agent's instructions. 9
36 Auditors--functions 10
(1) An auditor has the following functions under this division-- 11
(a) to inspect and audit, in each audit period, the trust 12
accounts of each agent by whom the auditor is engaged; 13
(b) to make an audit report for the agent for the audit 14
period; 15
(c) if the agent is an agent for the whole of the audit 16
period--to make 2 unannounced examinations of the 17
agent's trust accounts during the audit period; 18
(d) if the agent is an agent for less than the whole audit 19
period, but more than 6 months of the period--to make 20
1 unannounced examination of the agent's trust accounts 21
during the audit period. 22
(2) An auditor must not make an unannounced examination of an 23
agent's trust accounts within 2 months after the last day of the 24
audit period or another unannounced examination. 25
37 Auditor's advice to chief executive 26
An auditor must immediately give written notice to the chief 27
executive if the auditor-- 28
(a) can not report that a trust account has been satisfactorily 29
kept under this Act; or 30
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Part 3 Audit requirements
[s 38]
(b) finds, on an unannounced examination of an agent's 1
trust accounts, an irregularity relating to an account that 2
ought to be brought to the chief executive's notice. 3
Maximum penalty--200 penalty units or 1 year's 4
imprisonment. 5
38 Auditor may ask agent to produce other accounts 6
(1) This section applies if an auditor considers, to enable the 7
auditor to decide whether an agent's trust accounts have been 8
satisfactorily kept under this Act, it is necessary-- 9
(a) to examine a general account of the agent; or 10
(b) to be given information about the accounts. 11
(2) The auditor may ask the agent to produce the general account 12
or give the information. 13
(3) If the agent refuses, the auditor must immediately give written 14
notice to the chief executive. 15
Maximum penalty for subsection (3)--200 penalty units or 1 16
year's imprisonment. 17
39 Audit on ceasing to be principal agent 18
(1) This section applies if-- 19
(a) an agent keeps a trust account; and 20
(b) the agent stops being a principal agent. 21
Example-- 22
An agent who is a licensee stops being a principal agent if the 23
licensee stops carrying on business under the licensee's licence 24
on the licensee's own behalf. 25
(2) The agent must, within 2 months after the agent stops being a 26
principal agent-- 27
(a) have the agent's trust accounts audited by the agent's 28
auditor for the period-- 29
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Agents Financial Administration Bill 2013
Part 3 Audit requirements
[s 40]
(i) starting on the day immediately after the end of the 1
period covered by the last audit of the trust 2
accounts or, if the trust accounts have not 3
previously been audited, the day on which the 4
agent was first required to keep trust accounts; and 5
(ii) ending on the day the person stops being a 6
principal agent; and 7
(b) file the auditor's signed original audit report with the 8
chief executive. 9
Maximum penalty--200 penalty units or 2 years 10
imprisonment. 11
40 Audit reports 12
(1) An auditor who audits an agent's trust accounts must give the 13
agent an original signed audit report under this section. 14
Maximum penalty--200 penalty units or 1 year's 15
imprisonment. 16
(2) The auditor must include the following in the report-- 17
(a) the following details-- 18
(i) the auditor's name; 19
(ii) the prescribed entity of which the auditor is a 20
member; 21
(iii) the auditor's membership number issued by the 22
prescribed entity; 23
(b) the audit period for which the report is made; 24
(c) the name and number of each trust account audited; 25
(d) the name of the financial institution, the office or branch 26
of the institution where each trust account was kept and 27
the identifying number of the office or branch; 28
(e) the agent's name; 29
(f) if the agent is an individual who holds a licence--the 30
agent's licence number; 31
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Part 3 Audit requirements
[s 40]
(g) for a corporation-- 1
(i) if the corporation is a licensee--the corporation's 2
licence number; and 3
(ii) the licence number of each licensee in charge of 4
the corporation's business; and 5
(iii) the name of each agent in charge of the 6
corporation's business during the audit period; 7
(h) if the agent carried on business under a registered 8
business name--the business name and the names of 9
any persons with whom the agent carried on the 10
business; 11
(i) each place where the agent carried on business as an 12
agent; 13
(j) a statement about whether each trust account has been 14
satisfactorily kept under this Act; 15
(k) a statement specifying the day and result of each 16
unannounced examination for the audit period under 17
section 36(1); 18
(l) a statement about whether the auditor has audited the 19
agent's general account; 20
(m) if a trust account has been overdrawn, the following 21
details-- 22
(i) the name of the overdrawn account; 23
(ii) the date and amount of each overdraw; 24
(iii) any reason given by the agent for each overdraw; 25
(iv) if an overdraw was corrected, the date of the 26
correction; 27
(n) if a trust creditor's ledger account has been overdrawn, 28
the following details-- 29
(i) the name of the trust creditor; 30
(ii) the date and amount of each overdraw; 31
(iii) any reason given by the agent for each overdraw; 32
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[s 40]
(iv) if an overdraw was corrected, the date of the 1
correction; 2
(o) a statement about whether, for each month during the 3
audit period-- 4
(i) each trust account cash book was reconciled with 5
the bank balance and trust ledger; and 6
(ii) an analysis was made showing the name of each 7
person for whom an amount was held and the 8
amount held for each person; 9
(p) the serial numbers of the trust receipts used during the 10
audit period and any unused trust receipts produced to 11
the auditor; 12
(q) if an amount has been held in trust for more than 3 13
months by the agent at the last day of the audit period, 14
the particulars for each amount, including-- 15
(i) any reason given by the agent for holding the 16
amount for more than 3 months; and 17
(ii) whether the amounts have been dispersed before 18
the day the report is given; 19
(r) a statement that each trust account cash book has been 20
reconciled with the bank balance of the trust account at 21
the last day of the audit period; 22
(s) a copy of the reconciliation of the trust account cash 23
book and the bank balance of the trust account at the last 24
day of the audit period containing the particulars 25
prescribed under a regulation for this paragraph; 26
(t) if the agent used software in connection with keeping 27
the trust account--the name and version number of the 28
software; 29
(u) a statement about anything else about a trust account 30
audited that the auditor considers should be reported to 31
the chief executive. 32
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Part 4 Directions about trust accounts 1
and appointing receivers and 2
special investigators 3
Division 1 Definitions 4
41 Definitions for pt 4 5
In this part-- 6
account means-- 7
(a) a trust account in an agent's name with a financial 8
institution; or 9
(b) an account in the agent's name or in which the agent has 10
an interest with a financial institution; or 11
(c) another account to which trust money is deposited. 12
agent includes a former agent and the personal representative 13
of a deceased agent. 14
defalcation means the stealing, or embezzlement, omitting to 15
account, misappropriation or misapplication of, or another act 16
about, property punishable by imprisonment. 17
money includes-- 18
(a) an instrument for the payment of an amount if the 19
instrument may be paid to a financial institution; and 20
(b) security for money if title to the security is transferable 21
by delivery. 22
trust property, for an agent-- 23
(a) means-- 24
(i) property received by the agent in trust that has not 25
been given to the person entitled to it or someone 26
else under the person's direction or according to 27
law; or 28
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(ii) property that, except for the appointment of a 1
receiver, would be receivable for another person by 2
the agent in trust after the receiver's appointment; 3
or 4
(iii) trust money; and 5
(b) includes computer hardware, software and discs, 6
ledgers, books of account, vouchers, records, deeds, 7
files and other documents used in connection with 8
something mentioned in paragraph (a). 9
Division 2 Giving directions about agents' 10
accounts 11
42 Chief executive may give directions about agent's 12
accounts in particular cases 13
(1) The chief executive may decide to give a direction under 14
subsection (2) if the chief executive believes, on reasonable 15
grounds-- 16
(a) any of the following persons has, or may have, stolen or 17
misappropriated or misapplied trust money-- 18
(i) an agent; 19
(ii) the person in charge of an agent's business; 20
(iii) an employee of an agent; or 21
(b) an agent has abandoned the agent's business. 22
(2) The chief executive may direct, by signed writing-- 23
(a) if a claim has been made against the fund for the trust 24
money--that all or part of the amount to the credit of a 25
stated account be paid to the chief executive; or 26
(b) that an amount must not be drawn from a stated account 27
other than with the chief executive's written approval; or 28
(c) that a stated account may be operated only under stated 29
conditions. 30
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(3) The direction must-- 1
(a) be given to each holder of the account and the financial 2
institution where the account is kept; and 3
(b) state the account to which it relates; and 4
(c) if it includes a direction under subsection (2)(c), state 5
the conditions under which the account may be 6
operated. 7
(4) If an amount is paid to the chief executive under subsection 8
(2)(a), the chief executive must pay the amount to the 9
consolidated fund. 10
43 Account not to be operated unless chief executive allows 11
(1) This section applies if the chief executive gives a direction 12
under section 42(1). 13
(2) After the direction has been given to the holder of the account, 14
and until it is withdrawn, the holder must not sign a cheque or 15
other instrument drawn on the account unless the cheque or 16
other instrument has first been signed by the chief executive 17
or a person authorised by the chief executive to sign the 18
cheque or instrument. 19
Maximum penalty--200 penalty units or 2 years 20
imprisonment. 21
44 Financial institution must comply with direction 22
(1) After a direction has been given to a financial institution 23
under section 42(2), and until it is withdrawn, the financial 24
institution must not-- 25
(a) pay a cheque or other instrument drawn on the account 26
stated in the direction unless the cheque or instrument is 27
also signed by the chief executive; or 28
(b) give effect to another transaction on the account that is 29
not authorised because of the direction. 30
Maximum penalty-- 31
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(a) for an individual guilty of an offence under chapter 2 of 1
the Criminal Code--200 penalty units or 1 year's 2
imprisonment; or 3
(b) for a corporation--1000 penalty units. 4
(2) Subsection (1) applies whether or not a copy of the direction 5
has been given to anyone else. 6
(3) For section 42(2)(b), the chief executive's signature on the 7
cheque or other instrument is sufficient evidence of the chief 8
executive's approval to draw an amount from the account to 9
honour the cheque or other instrument. 10
(4) A manager or principal officer in charge of an office or branch 11
of the financial institution where the account is kept, or 12
another officer of the financial institution, must not 13
knowingly contravene this section. 14
Maximum penalty--200 penalty units or 1 year's 15
imprisonment. 16
(5) A person to whom a direction is given does not incur a civil 17
liability to another only because the person complies with the 18
direction. 19
45 Person may ask QCAT to review chief executive's 20
decision 21
(1) A person who is dissatisfied with a decision of the chief 22
executive made under section 42(1) may apply to QCAT to 23
have the decision reviewed. 24
(2) QCAT can not stay the operation of the decision under the 25
QCAT Act, section 22(3). 26
46 Withdrawal of direction 27
(1) The chief executive may withdraw a direction given under 28
section 42 at any time. 29
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(2) If the direction is withdrawn, the chief executive must 1
immediately give all persons who were given the direction a 2
notice that the direction has been withdrawn. 3
(3) A direction stops having effect when the notice is given. 4
Division 3 Receivers 5
Subdivision 1 Appointment 6
47 When receiver may be appointed 7
(1) If the chief executive believes, on reasonable grounds, 8
defalcation has, or may have, been committed in relation to an 9
agent's trust account, the chief executive may appoint a 10
receiver if-- 11
(a) the agent consents to the appointment; or 12
(b) the chief executive-- 13
(i) gives the agent written notice-- 14
(A) stating the chief executive proposes to 15
appoint a receiver on the ground that 16
defalcation has, or may have, been 17
committed in relation to the agent's trust 18
account; and 19
(B) outlining the facts and circumstances 20
forming the basis for the ground; and 21
(C) inviting the agent to show, in writing, within 22
a stated time of at least 21 days, why the 23
appointment should not be made; and 24
(ii) after considering any written representations given 25
within the stated time, still considers the ground 26
exists. 27
Note-- 28
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Under the Judicial Review Act 1991, part 4, a person aggrieved by an 1
administrative decision of the chief executive can ask the chief executive 2
to give a written statement of reasons for the decision, if they are not 3
given. See the Acts Interpretation Act 1954, section 27B (Content of 4
statement of reasons for decision) for what the chief executive must set 5
out in the reasons. 6
(2) The chief executive may immediately appoint a receiver if the 7
chief executive believes, on reasonable grounds, a person can 8
not obtain payment or delivery of trust property held for the 9
person by an agent because of-- 10
(a) the agent's mental or physical infirmity; or 11
(b) the agent's death; or 12
(c) the abandonment of the agent's business; or 13
(d) if the agent is a licensee-- 14
(i) the agent's disqualification from holding a licence; 15
or 16
(ii) the cancellation or suspension of the agent's 17
licence; or 18
(iii) a refusal to renew the agent's licence; or 19
(iv) the expiry of the agent's licence. 20
48 Trust property over which receiver may be appointed 21
A receiver may be appointed over trust property-- 22
(a) held by an agent; or 23
(b) held by another person for an agent; or 24
(c) recoverable by an agent; or 25
(d) if an agent is dead, that may be recoverable by the 26
agent's personal representative. 27
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49 Who may be appointed 1
(1) The chief executive may appoint a person as a receiver only if 2
satisfied the person is appropriately qualified to perform a 3
receiver's functions. 4
(2) A person may be appointed as a receiver and a special 5
investigator over the same trust property. 6
Note-- 7
See section 70 (Appointment of special investigator). 8
50 How receivers are appointed 9
(1) The chief executive must appoint a receiver by signed notice. 10
(2) The notice must state the trust property (receivership 11
property) over which the receiver is appointed. 12
(3) The appointment takes effect when the notice is signed. 13
(4) The chief executive must give a copy of the notice to the agent 14
and the receiver as soon as practicable after the signing of the 15
notice. 16
(5) If the agent is a corporation, the agent must give notice of the 17
appointment to each person who was an executive officer of 18
the corporation at the time the event giving rise to the 19
appointment happened, unless the agent has a reasonable 20
excuse. 21
Maximum penalty for subsection (5)-- 22
(a) for an individual guilty of an offence under chapter 2 of 23
the Criminal Code--100 penalty units; or 24
(b) for a corporation--500 penalty units. 25
Subdivision 2 Receiver's functions and powers 26
51 Receivers--functions 27
(1) A receiver appointed under this division has the following 28
functions-- 29
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(a) to take possession of receivership property; 1
(b) to manage receivership property; 2
(c) to receive claims against receivership property; 3
(d) if the agent held receivership property in trust-- 4
(i) to identify the person or persons who have the right 5
to it; and 6
(ii) to distribute it under this division; 7
(e) to identify any defalcation that has, or may have, been 8
committed; 9
(f) to report to the chief executive about the receivership. 10
(2) In carrying out its functions, the receiver must comply with 11
parts 2 and 3 as if a reference in those parts to the agent were a 12
reference to the receiver. 13
52 Requiring information 14
(1) A receiver may ask a person to give the receiver information 15
or documents the receiver reasonably requires about 16
receivership property. 17
(2) The person must give the receiver the information or 18
documents, unless the person has a reasonable excuse. 19
Maximum penalty--100 penalty units. 20
(3) It is a reasonable excuse for a person not to give information 21
or documents to a receiver if doing so might tend to 22
incriminate the person. 23
53 Possession of receivership property 24
(1) A receiver may take or enter into possession of receivership 25
property. 26
(2) As soon as practicable after taking or entering into possession 27
of receivership property, the receiver must give a receipt for it 28
to the person from whom the property was taken or who held 29
possession of the property. 30
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(3) The receiver must allow a person who would be entitled to the 1
receivership property if it were not in the receiver's 2
possession-- 3
(a) to inspect it; or 4
(b) if it is a document, to take a copy of it. 5
(4) The receiver must return receivership property the receiver is 6
satisfied is not required for the receivership to the agent or 7
other person who has the right to it. 8
(5) The receiver may take or enter into possession of receivership 9
property under subsection (1) despite a lien or other security 10
over it claimed by another person. 11
(6) However, the taking or entry into possession does not affect 12
the person's claim to the lien or other security against a person 13
other than the receiver. 14
54 Orders for possession of receivership property 15
(1) This section applies if-- 16
(a) a receiver requires a person in possession of receivership 17
property to give possession of it to the receiver; and 18
(b) the person does not comply with the requirement. 19
(2) The receiver may apply to a court having jurisdiction for the 20
recovery of debts up to the amount or value of the 21
receivership property for an order for possession of the 22
property. 23
(3) On the application, the court may make any order it considers 24
appropriate. 25
55 Enforcing orders 26
(1) This section applies if-- 27
(a) a court makes an order under section 54 for possession 28
of receivership property against a person; and 29
(b) the person has been given a copy of the order; and 30
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(c) the person has not complied with the order. 1
(2) The court may make an order authorising a police officer, or 2
the receiver or another person and a police officer-- 3
(a) to enter stated premises or another place occupied by the 4
person and search for the receivership property; and 5
(b) to seize the receivership property and move it to a place 6
the receiver considers appropriate. 7
(3) The court may also make another order it considers 8
appropriate. 9
56 Improperly withdrawing, destroying or concealing 10
receivership property 11
A person must not-- 12
(a) withdraw an amount or make a payment from an 13
account with intent to defeat a receiver's functions; or 14
(b) destroy, conceal, move from 1 place to another place, 15
give to another or place under another's control 16
receivership property over which a receiver has been 17
appointed. 18
Maximum penalty--200 penalty units or 2 years 19
imprisonment. 20
57 Dealing with receivership property 21
(1) A receiver may deal with receivership property in the same 22
way as the agent may have lawfully dealt with the property. 23
(2) Without limiting subsection (1), the receiver may do the 24
following-- 25
(a) if the agent had no general trust account, open a general 26
trust account; 27
(b) claim or receive a debt owing to the agent in connection 28
with the receivership property; 29
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(c) start or defend a proceeding concerning the receivership 1
property for the agent; 2
(d) engage a legal representative or other representative to 3
give advice; 4
(e) engage employees or representatives to help the receiver 5
carry out the receiver's functions; 6
(f) if the agent had power to sell or require the sale of the 7
receivership property, sell or require the sale of the 8
property. 9
58 Obstructing receivers 10
A person must not obstruct a receiver in the performance of 11
the receiver's functions or the exercise of the receiver's 12
powers under this subdivision. 13
Maximum penalty--200 penalty units or 1 year's 14
imprisonment. 15
Subdivision 3 Distributing receivership property 16
59 Notice to claimants against receivership property 17
(1) The receiver must give notice to persons who may have a 18
claim against receivership property. 19
(2) The notice may be given-- 20
(a) by post; or 21
(b) by newspaper advertisement; or 22
(c) in another way the receiver reasonably thinks will bring 23
the notice to the attention of persons who may have a 24
claim to the receivership property. 25
(3) The notice must state a time, at least 1 month after the notice 26
is given, for particulars and grounds of a claim against the 27
receivership property to be given to the receiver. 28
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(4) A claim made by a person (a claimant) against receivership 1
property must state-- 2
(a) the event alleged to give rise to the claim; and 3
(b) when the event happened; and 4
(c) if the claimant was not immediately aware that the 5
claimant suffered financial loss because of the event, 6
when the claimant became aware of the financial loss; 7
and 8
(d) all relevant particulars about the event and the financial 9
loss; and 10
(e) the claimant's estimated financial loss. 11
(5) The claim is taken to have been made on the day it is given to 12
the receiver even though the claimant is unable to state all of 13
the particulars mentioned in subsection (4). 14
(6) The receiver may require the claimant to verify the claim, or 15
part of the claim. 16
Example of verification-- 17
statutory declaration 18
60 Access to documents 19
(1) The receiver must give a person who wishes to claim against 20
receivership property reasonable access to documents held by 21
the receiver to allow particulars and grounds of the claim to be 22
given. 23
(2) The receiver must give the access free of charge. 24
61 Deciding claims 25
(1) The receiver must-- 26
(a) consider all claims against receivership property; and 27
(b) prepare a report stating the receiver's opinion about 28
whether each claim is allowable, and reasons for the 29
receiver's opinion (a draft claims report). 30
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(2) Before deciding a claim, the receiver must give the following 1
to the agent and each person who has claimed against the 2
receivership property (the parties)-- 3
(a) a copy of the draft claims report; 4
(b) a written notice inviting the parties to give the receiver 5
written comments about the draft claims report within 6
14 days after giving the notice. 7
(3) If the receiver receives comments from a party, the receiver 8
must provide each other party with a copy of the comments 9
and invite the parties to give the receiver any further 10
comments within 14 days after giving the notice. 11
(4) The receiver must have regard to the following when deciding 12
whether to allow claims-- 13
(a) the parties' comments given under subsection (3); 14
(b) information or a document given under section 52. 15
(5) The receiver may refuse to allow a person's claim against the 16
receivership property if-- 17
(a) the person was given notice under section 59; and 18
(b) particulars and grounds of the claim were not given 19
within the time stated in the notice. 20
(6) The receiver must refuse to allow a person's claim against the 21
receivership property if the receiver is satisfied the person 22
does not have a lawful claim against the property. 23
(7) The receiver must prepare a report (a final claims report) that 24
includes-- 25
(a) a copy of the draft claims report; and 26
(b) a copy of the parties' comments given under subsection 27
(3); and 28
(c) the receiver's decision for each claim and reasons for the 29
decision. 30
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62 Payment of claims 1
(1) This section applies if the receiver has-- 2
(a) given notice under section 59(1); and 3
(b) complied with section 61. 4
(2) The receiver may pay a claim allowed by the receiver only if 5
the receivership property is enough to pay all claims allowed 6
by the receiver. 7
(3) If the receivership property is not enough to pay all of the 8
allowed claims, the receiver-- 9
(a) may pay any part of the property that consists of money 10
to the chief executive; and 11
(b) must give a copy of the final claims report prepared 12
under section 61(7) to the chief executive. 13
(4) Money paid to the chief executive under subsection (3) must 14
be-- 15
(a) paid to the consolidated fund; and 16
(b) paid from the claim fund under section 63(3)(b). 17
(5) In this section-- 18
claim does not include a claim by the agent. 19
63 Money not dealt with by receiver 20
(1) This section applies to receivership property consisting of 21
money in the receiver's possession. 22
(2) The receiver must give the money to the chief executive if-- 23
(a) the receiver has not dealt with it under this division; and 24
(b) the chief executive, by written notice, asks for it. 25
(3) Money given to the chief executive under subsection (2) must 26
be paid to the consolidated fund and be paid from the claim 27
fund in the following order-- 28
(a) to reimburse claims paid from the claim fund in relation 29
to the agent; 30
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(b) to pay unsatisfied claims against the claim fund in 1
relation to the agent; 2
(c) to pay the remuneration and costs of a receiver 3
appointed under section 47; 4
(d) to pay the remuneration and costs of a special 5
investigator appointed under section 70; 6
(e) to pay claims by the agent against the money. 7
Subdivision 4 Recovery of receivers' 8
remuneration and costs 9
64 Recovery of remuneration and costs 10
(1) The following persons are liable to reimburse the chief 11
executive for an amount paid to a receiver, including an 12
amount paid from the fund, for the receiver's remuneration 13
and costs-- 14
(a) the agent in relation to whom the receiver was 15
appointed; 16
(b) if the agent is a corporation, the executive officers of the 17
corporation when the event for which the chief 18
executive appointed the receiver happened. 19
(2) If more than 1 person is liable to reimburse the chief 20
executive, the liability of the persons is joint and several. 21
(3) The chief executive may recover an amount liable to be 22
reimbursed under subsection (1) as a debt. 23
(4) Before taking action to recover the amount of the debt, the 24
chief executive must give a letter of demand to each person 25
liable to reimburse the chief executive, requiring the person to 26
pay the amount to the chief executive within 1 month after 27
receiving the letter. 28
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Subdivision 5 Ending receivership 1
65 Ending receiver's appointment 2
A receiver's appointment ends if-- 3
(a) the receiver resigns by signed notice given to the chief 4
executive; or 5
(b) the receiver or the agent in relation to whom the receiver 6
was appointed applies to the chief executive to end the 7
appointment and the chief executive approves the 8
application; or 9
(c) the receiver dies; or 10
(d) the chief executive ends the appointment by signed 11
notice given to the receiver. 12
66 Dealing with receivership property when appointment 13
ends 14
(1) This section applies to receivership property if-- 15
(a) the receiver's appointment ends; and 16
(b) the chief executive has not asked for the property under 17
section 63. 18
(2) If, within 14 days after the end of the receiver's appointment, 19
the chief executive appoints another person (the new receiver) 20
to be the receiver in the former receiver's place, the former 21
receiver must-- 22
(a) give the receivership property to the new receiver as 23
soon as reasonably practicable; or 24
(b) if the chief executive gives the former receiver a 25
direction about how to deal with the receivership 26
property, comply with the direction. 27
Maximum penalty--200 penalty units or 1 year's 28
imprisonment. 29
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(3) If a new receiver is not appointed within the 14 days, the 1
former receiver must give the receivership property to the 2
agent or other person who has the right to it. 3
Maximum penalty--200 penalty units or 1 year's 4
imprisonment. 5
(4) However, the chief executive may direct the former receiver 6
to destroy or give to the chief executive a part of the 7
receivership property consisting of documents if the 8
documents have not been given to the person entitled to them. 9
(5) The former receiver must comply with a direction under 10
subsection (4), unless the former receiver has a reasonable 11
excuse. 12
Maximum penalty for subsection (5)--200 penalty units or 1 13
year's imprisonment. 14
67 Returns by receiver 15
(1) A receiver must give the chief executive a report about the 16
receivership when the chief executive directs, containing any 17
information reasonably required by the chief executive. 18
(2) The receiver must also give the chief executive a report when 19
the receiver's appointment ends. 20
(3) The report given under subsection (2) must contain-- 21
(a) if a copy of the final claims report prepared under 22
section 61(7) has not already been provided under 23
section 62(3)(b)--a copy of the final claims report; and 24
(b) any other information reasonably required by the chief 25
executive. 26
(4) The receiver is not entitled to be paid for the receivership until 27
reports required under this section are given to the chief 28
executive. 29
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Subdivision 6 Miscellaneous 1
68 Receiver not personal representative 2
To remove any doubt, it is declared that a receiver of a 3
deceased agent, in performing the receiver's functions, is not 4
to be taken to be the agent's personal representative. 5
69 Receivership property free from execution or attachment 6
Receivership property can not be levied on or taken or 7
attached under a judgment. 8
Division 4 Special investigators 9
70 Appointment of special investigator 10
(1) The chief executive may, by written notice, appoint a special 11
investigator over an agent's trust account if the chief 12
executive considers the trust account has not been kept as 13
required under this Act. 14
(2) The notice must state-- 15
(a) the agent's name and details of the trust account; and 16
(b) the terms on which the special investigator is appointed; 17
and 18
(c) the special investigator's functions and powers. 19
(3) A copy of the notice must be given to the agent. 20
(4) The chief executive may appoint a person as a special 21
investigator only if the chief executive is satisfied the person 22
is appropriately qualified to perform a special investigator's 23
functions. 24
(5) An inspector may be appointed as a special investigator. 25
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71 Special investigators--functions 1
A special investigator appointed under this division may 2
perform any of the following functions stated in the 3
investigator's notice of appointment-- 4
(a) inspecting the agent's trust accounts and records that 5
relate to the trust accounts; 6
(b) preparing or constructing incomplete trust account 7
records; 8
(c) performing other accounting tasks to establish the state 9
of the trust account; 10
(d) reporting to the chief executive under section 74. 11
72 Special investigators--powers 12
(1) The chief executive may, by signed notice, give a special 13
investigator a power that may be given to an inspector under 14
the FTI Act. 15
(2) A special investigator's powers under subsection (1) end 16
when the special investigator's appointment ends. 17
73 Agent must comply with special investigator's lawful 18
requests 19
(1) The agent over whose trust account the special investigator is 20
appointed must comply with a special investigator's lawful 21
requests, unless the agent has a reasonable excuse. 22
Maximum penalty--200 penalty units or 1 year's 23
imprisonment. 24
(2) The special investigator must advise the chief executive of a 25
failure by the agent to comply with a request. 26
74 Reports to chief executive 27
(1) A special investigator must report to the chief executive at the 28
time, and in the way, required by the chief executive. 29
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(2) However, if the special investigator considers sufficient 1
grounds exist to appoint a receiver, the special investigator 2
must advise the chief executive immediately of the grounds. 3
75 Recovery of remuneration and costs 4
(1) The following persons are liable to reimburse the chief 5
executive for an amount paid to the special investigator, 6
including an amount paid from the fund, for the investigator's 7
remuneration and costs-- 8
(a) the agent over whose trust account the special 9
investigator is appointed; 10
(b) if the agent over whose trust account the special 11
investigator is appointed is a corporation, the executive 12
officers of the corporation when the event for which the 13
chief executive appointed the special investigator 14
happened. 15
(2) If more than 1 person is liable to reimburse the chief 16
executive, the liability of the persons is joint and several. 17
(3) The chief executive may recover an amount liable to be 18
reimbursed under subsection (1) as a debt. 19
(4) Before taking action to recover the amount of the debt, the 20
chief executive must give a letter of demand to each person 21
liable to reimburse the chief executive, requiring the person to 22
pay the amount to the chief executive within 1 month after 23
receiving the letter. 24
76 Ending special investigator's appointment 25
A special investigator's appointment ends if-- 26
(a) the investigator resigns by signed notice given to the 27
chief executive; or 28
(b) the investigator dies; or 29
(c) the investigator's notice of appointment states the 30
appointment ends when an event happens and the event 31
happens; or 32
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(d) the chief executive ends the appointment by signed 1
notice given to the investigator. 2
Part 5 Jurisdiction of QCAT 3
77 Jurisdiction 4
For this Act, QCAT has the following jurisdiction-- 5
(a) to hear and decide-- 6
(i) claims against the fund referred by the chief 7
executive under section 95(1)(b); and 8
(ii) applications for reimbursement orders under part 8, 9
division 4; 10
(b) to review a decision of the chief executive-- 11
(i) under section 45(1); or 12
(ii) for which an information notice is given under 13
section 10(5)(b), 90 or 102; 14
(c) to decide whether to extend the time within which to 15
make a claim or seek review of a decision of the chief 16
executive under section 122. 17
Part 6 Claim fund 18
78 Claim fund 19
(1) The claim fund is established. 20
(2) The Treasurer must transfer amounts to the fund, appropriated 21
from time to time, to meet claims against the fund, the special 22
payments made from the fund or the remuneration and costs 23
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[s 79]
of a receiver or special investigator payable from the fund, for 1
any particular financial year. 2
(3) Accounts for the fund must be kept as part of the departmental 3
accounts of the department. 4
(4) Amounts transferred to the fund must be deposited in a 5
departmental financial-institution account of the department, 6
but may be deposited in an account used for depositing other 7
amounts of the department. 8
79 How fund may be applied 9
(1) The fund must be used to pay the amount of all claims 10
allowed against the fund. 11
(2) The fund may also be used to pay-- 12
(a) the remuneration and costs of the following-- 13
(i) a receiver appointed under section 47; 14
(ii) a special investigator appointed under section 70; 15
or 16
Note-- 17
The remuneration and costs of a receiver are recoverable under 18
section 64 (Recovery of remuneration and costs). The 19
remuneration and costs of a special investigator are recoverable 20
under section 75 (Recovery of remuneration and costs). 21
Amounts recovered under these sections by the chief executive 22
are paid to the fund under section 120 (Recovery of 23
payments--general). 24
(b) a special payment by the chief executive under part 8, 25
division 2. 26
(3) The Treasurer may transfer an amount from the fund to the 27
consolidated fund. 28
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[s 80]
Part 7 Claims against the fund 1
Division 1 Preliminary 2
80 Definitions for pt 7 3
In this part-- 4
agent includes-- 5
(a) a former agent; and 6
(b) a person who is not authorised under the Debt 7
Collectors (Field Agents and Collection Agents) Act 8
2013, part 2, division 1 to perform a relevant activity 9
within the meaning of that division, but who acts as if 10
the person were authorised under that division; and 11
(c) a person who is not licensed under an Agents Act, but 12
who acts as a licensee; and 13
(d) a former licensee under the repealed Property Agents 14
and Motor Dealers Act 2000. 15
chattel auctioneer see the Motor Dealers and Chattel 16
Auctioneers Act 2013, schedule 4. 17
claimant means a person who makes a claim against the fund. 18
claim notice see section 91(1). 19
financial loss, suffered by a person, if evidenced by a 20
judgment of a court, does not include interest awarded on the 21
judgment. 22
marketeering contravention means a contravention of any of 23
the following by a relevant person-- 24
(a) the Property Occupations Act 2013, section 207, 208 or 25
209; 26
(b) section 573A, 573B or 573C of the repealed Act. 27
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Note-- 1
For claims relating to offences mentioned in paragraph (b), see 2
section 155 (Claim fund). 3
motor dealer see the Motor Dealers and Chattel Auctioneers 4
Act 2013, schedule 4. 5
motor vehicle see the Motor Dealers and Chattel Auctioneers 6
Act 2013, schedule 4. 7
registered office-- 8
(a) of an agent who is a debt collector under the Debt 9
Collectors (Field Agents and Collection Agents) Act 10
2013--see section 13 of that Act; or 11
(b) of an agent who is a licensee under the Motor Dealers 12
and Chattel Auctioneers Act 2013--see section 70 of 13
that Act; or 14
(c) of an agent who is a licensee under the Property 15
Occupations Act 2013--see section 93 of that Act. 16
relevant activity, for a debt collector under the Debt 17
Collectors (Field Agents and Collection Agents) Act 2013, 18
means any of the following activities under that Act-- 19
(a) a debt collection activity; 20
(b) a repossession activity; 21
(c) a process serving activity. 22
relevant person means the following-- 23
(a) an agent; 24
(b) an agent's employee or agent, or a person carrying on 25
business with the agent; 26
(c) a person having charge or control, or apparent charge or 27
control, of an agent's registered office or business. 28
residential property see the Property Occupations Act 2013, 29
schedule 3. 30
respondent, for a claim, means a person whose actions are 31
alleged to have given rise to the claim. 32
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[s 81]
81 What is the purchase of a non-investment residential 1
property 2
A person purchases a non-investment residential property 3
only if-- 4
(a) the property is a residential property; and 5
(b) either of the following has been assessed for the 6
purchase-- 7
(i) a concession, under the Duties Act 2001, chapter 2, 8
part 9, for transfer duty; 9
(ii) a concession, under the repealed Stamp Act 1894, 10
section 55A, for stamp duty. 11
Division 2 Persons who may claim 12
82 Claims 13
(1) A person may claim against the fund if the person suffers 14
financial loss because of the happening of any of the 15
following events-- 16
(a) a contravention of section 21 or 22; 17
(b) a stealing, misappropriation or misapplication by a 18
relevant person of property entrusted to the person as 19
agent for someone else in the person's capacity as a 20
relevant person; 21
(c) the contravention by a relevant person of the Debt 22
Collectors (Field Agents and Collection Agents) Act 23
2013, section 133; 24
(d) the contravention by a relevant person of the following 25
provisions of the Motor Dealers and Chattel 26
Auctioneers Act 2013-- 27
· section 91 28
· section 92 29
· section 104(4) 30
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· section 113 1
· section 136 2
· section 137 3
· section 215 4
· section 216; 5
(e) a failure of a motor dealer to ensure a person who has 6
bought a motor vehicle sold by or for the dealer gains 7
clear title to the vehicle at the time property in the 8
vehicle passes to the buyer, whether or not the motor 9
dealer contravenes the Motor Dealers and Chattel 10
Auctioneers Act 2013, section 96; 11
(f) a failure of a chattel auctioneer to ensure a person who 12
has bought a motor vehicle sold by the auctioneer (other 13
than a motor vehicle sold for another auctioneer or a 14
motor dealer) gains clear title to the vehicle at the time 15
property in the vehicle passes to the buyer, whether or 16
not the auctioneer contravenes the Motor Dealers and 17
Chattel Auctioneers Act 2013, section 142; 18
(g) a contravention by a relevant person of the following 19
provisions of the Property Occupations Act 2013-- 20
· section 154 21
· section 155 22
· section 206 23
· section 207 24
· section 208 25
· section 209 26
· section 212; 27
(h) a contravention of any of the following provisions of the 28
Land Sales Act 1984 by a licensee under the Property 29
Occupations Act 2013 appointed by the owner of land to 30
which the Land Sales Act 1984 applies or a relevant 31
person employed by the licensee-- 32
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· section 9 1
· section 11 2
· section 12 3
· section 21 4
· section 23 5
· section 24. 6
(2) A person may make a claim against the fund for financial loss 7
relating to a non-investment residential property purchased by 8
the person because of, or arising out of, a marketeering 9
contravention only to the extent the loss is capital loss. 10
(3) Also, capital loss mentioned in subsection (2) may be claimed 11
only if the loss has been realised as mentioned in section 110. 12
83 Claim may be made whether or not claim made against 13
receiver 14
A person may make a claim against the fund under section 82 15
even if the person has made another claim for the loss against 16
a receiver and the receiver has not considered or has refused 17
the other claim. 18
84 Persons who can not claim generally 19
(1) A person who suffers financial loss because of, or arising out 20
of, the stealing, misappropriation or misapplication of an 21
amount that a relevant person was directed to invest under 22
section 17 can not make a claim against the fund. 23
(2) Also, the following persons can not make a claim against the 24
fund for the following financial losses-- 25
(a) a seller of livestock who suffers financial loss in relation 26
to the sale of the livestock if-- 27
(i) the livestock are received by a relevant person from 28
the seller; and 29
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(ii) the relevant person and the seller agree in writing 1
that the relevant person guarantees payment to the 2
seller of the livestock's purchase price; 3
Note-- 4
The practice described in subparagraph (ii) is commonly 5
referred to as `del credere'. 6
(b) a relevant person who suffers financial loss in the course 7
of performing an activity, or carrying on a business, as a 8
relevant person; 9
(c) a person holding a licence, however described, under a 10
corresponding law that is similar to a licence under this 11
Act who suffers financial loss in the course of 12
performing an activity, or carrying on business, under 13
the person's licence; 14
(d) a financier who incurs financial loss acting in the 15
capacity of a financier; 16
(e) a person who suffers financial loss because the person 17
guaranteed a motor dealer's obligations under a 18
financial arrangement made by the motor dealer; 19
(f) a person who suffers financial loss because of a failure 20
to disclose or make effective disclosure under the 21
Property Occupations Act 2013, section 158; 22
(g) a person who suffers financial loss because of, or arising 23
out of, a marketeering contravention relating to the 24
purchase by the person of a residential property, other 25
than a non-investment residential property. 26
(3) In this section-- 27
financier means a person whose ordinary and primary 28
business, whether or not it carries on any other business, is 29
providing credit. 30
livestock see the Motor Dealers and Chattel Auctioneers Act 31
2013, schedule 4. 32
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[s 85]
85 General time limit for making claims 1
(1) This section applies to a claim against the fund other than a 2
claim because of, or arising out of, a marketeering 3
contravention relating to the purchase of a non-investment 4
residential property. 5
(2) A person may make the claim against the fund for financial 6
loss for the happening of an event only if the person makes the 7
claim within the earlier of the following-- 8
(a) 1 year after the person becomes aware that the person 9
has suffered the loss; 10
(b) 3 years after the happening of the event. 11
(3) However, if the person starts a proceeding in a court to recover 12
the person's financial loss within the time permitted to make a 13
claim under subsection (2), the person may make the claim 14
within 3 months after the proceeding in the court ends. 15
(4) Subsection (3) does not limit the time allowed under 16
subsection (2) to make a claim. 17
(5) In this section-- 18
court includes QCAT. 19
86 Time limit for making particular claims relating to 20
marketeering contraventions and non-investment 21
residential property 22
(1) A person may make a claim against the fund for capital loss 23
because of, or arising out of, a marketeering contravention 24
relating to the person's purchase of a non-investment 25
residential property only if-- 26
(a) the person has within 1 year after the contract date, 27
given the chief executive notice in the approved form 28
that the person intends to make the claim; and 29
(b) the person makes the claim within 6 years after the 30
contract date. 31
(2) The approved form must include the matters mentioned in 32
section 88(2)(a) to (e). 33
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(3) The QCAT Act, section 61 does not apply to enable QCAT to 1
extend the time permitted to do a thing mentioned in 2
subsection (1)(a) or (b). 3
(4) In this section-- 4
contract date means the day on which the contract for the 5
purchase was entered into. 6
87 Time limit for a claim notified by receiver 7
Despite section 85 or 86, a claim given under section 62(3)(b) 8
to the chief executive by a receiver is taken to have been made 9
within the time allowed under section 85 or 86. 10
Division 3 Making and dealing with claims 11
88 Making claims other than particular claims relating to 12
marketeering contraventions and non-investment 13
residential property 14
(1) This section applies to a claim against the fund, other than a 15
claim for loss because of, or arising out of, a marketeering 16
contravention relating to the purchase of a non-investment 17
residential property. 18
(2) The claim must be made to the chief executive in the 19
approved form and state-- 20
(a) the event alleged to give rise to the claim; and 21
(b) when the event happened; and 22
(c) if the claimant was not immediately aware that the 23
claimant suffered financial loss because of the 24
happening of the event, when the claimant became 25
aware of the financial loss; and 26
(d) all relevant particulars about the event and the financial 27
loss; and 28
(e) the claimant's estimated financial loss. 29
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(3) The claim is taken to have been made on the day the claim is 1
given to the chief executive even if the claimant is unable to 2
state all of the particulars mentioned in subsection (2). 3
(4) The chief executive may require the claimant to verify the 4
claim, or part of the claim. 5
Example of verification-- 6
statutory declaration 7
(5) If the claim is not made within the time allowed under section 8
85, the chief executive must give the person a notice in the 9
approved form stating that-- 10
(a) the claim is out of time; and 11
(b) the person may apply to QCAT, within 14 days after 12
being given the notice, for an extension of time within 13
which to make the claim. 14
89 Making particular claims relating to marketeering 15
contraventions and non-investment residential property 16
(1) This section applies to a claim against the fund for capital loss 17
because of, or arising out of, a marketeering contravention 18
relating to the purchase of a non-investment residential 19
property. 20
(2) The claim must-- 21
(a) be made to the chief executive in the approved form; and 22
(b) state the realised capital loss claimed. 23
Note-- 24
See also division 6 (Deciding financial loss for non-investment 25
residential property). 26
(3) A purported claim that does not substantially comply with 27
subsection (2) is of no effect. 28
(4) The chief executive may require the claimant to verify the 29
claim or part of the claim. 30
Example of verification-- 31
statutory declaration 32
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[s 90]
(5) To remove any doubt, it is declared that if the purchase was by 1
more than 1 person, only 1 claim may be made. 2
(6) A claim mentioned in subsection (5) may be made by 1 of the 3
purchasers or by 2 or more of the purchasers jointly. 4
90 Invalid claims 5
(1) This section applies in relation to a claim by a person against 6
the fund if the chief executive considers the person has no 7
grounds for making the claim under this part. 8
(2) The chief executive-- 9
(a) may decide not to deal with the claim; and 10
(b) must give the person an information notice complying 11
with the QCAT Act, section 157(2) for the decision. 12
91 Chief executive to give respondent notice of claim 13
(1) The chief executive must give notice of a claim (a claim 14
notice) to the respondent. 15
(2) However, a claim notice need not be given to the respondent 16
if the chief executive is reasonably satisfied any of the 17
following have been appointed for the respondent-- 18
(a) for a corporation--a liquidator, controller, administrator 19
or receiver under the Corporations Act; 20
(b) a trustee in bankruptcy. 21
(3) The claim notice must be accompanied by a copy of the claim. 22
(4) The respondent may-- 23
(a) give the chief executive any information relevant to the 24
claim; or 25
(b) attempt to settle the claim with the claimant. 26
(5) The respondent must give the chief executive any information 27
relevant to the claim within 14 days after the claim notice is 28
given to the respondent. 29
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(6) If the respondent and claimant settle the claim, the respondent 1
must immediately advise the chief executive in writing and 2
provide evidence of the settlement. 3
(7) If the chief executive is satisfied the claim has settled, the 4
chief executive may treat the claim as having been withdrawn. 5
(8) In this section-- 6
claim does not include a claim given to the chief executive by 7
a receiver under section 62(3)(b). 8
92 Corporation to give notices relating to claim 9
(1) This section applies if the respondent is a corporation that is 10
given a claim notice under section 91. 11
(2) The respondent must give written notice of the claim, within 12
14 days after the claim notice is received by the respondent, to 13
each person who was an executive officer of the corporation 14
at the time the event alleged to give rise to the claim 15
happened, unless the respondent has a reasonable excuse. 16
Maximum penalty-- 17
(a) for an individual guilty of an offence under chapter 2 of 18
the Criminal Code--100 penalty units; or 19
(b) for a corporation--500 penalty units. 20
(3) An executive officer mentioned in subsection (2) is taken to 21
be a respondent to the claim. 22
(4) The respondent is taken to have given the notice to an 23
executive officer if the notice is sent to the residential and 24
business address of the officer last known to the respondent. 25
(5) The respondent must give the chief executive, within 21 days 26
after the claim notice is given to the respondent-- 27
(a) written notice of the name and last known residential 28
and business address of each person who was an 29
executive officer of the corporation at the time the event 30
alleged to give rise to the claim happened; and 31
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(b) a copy of the notice to the executive officer given under 1
subsection (2) and information about when the notice 2
was given. 3
Maximum penalty for subsection (5)-- 4
(a) for an individual guilty of an offence under chapter 2 of 5
the Criminal Code--100 penalty units; or 6
(b) for a corporation--500 penalty units. 7
93 Dealing with claims that have not settled 8
(1) If the claim has not settled within 28 days after the claim 9
notice is given to the respondent (the settlement period), the 10
claimant may, within 30 days after the settlement period ends, 11
give the chief executive written notice that the claimant wants 12
to proceed with the claim. 13
(2) If the claimant does not give written notice to the chief 14
executive within the timeframe required under subsection (1), 15
the chief executive may treat the claim as having been 16
withdrawn. 17
94 Inspector may investigate claims and report and related 18
documents may be referred to QCAT 19
(1) The chief executive may direct an inspector to investigate a 20
claim that has not settled. 21
(2) If an inspector investigates a claim, the inspector must prepare 22
a report about the claim and give a copy of the report to the 23
chief executive. 24
(3) The chief executive must give a copy of the report to the 25
claimant and the respondent and, if the report is about a claim 26
to be decided by QCAT, to the principal registrar under the 27
QCAT Act. 28
(4) The chief executive may also give documents relating to the 29
claim to the claimant and the respondent (the parties) and, if 30
the claim is to be decided by QCAT, to the principal registrar 31
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[s 95]
under the QCAT Act of QCAT whether or not a report is 1
given to the parties and QCAT under subsection (3). 2
Division 4 Deciding claims 3
Subdivision 1 Who decides claim 4
95 Chief executive may decide or refer claim 5
(1) The chief executive may-- 6
(a) decide a claim under this division; or 7
(b) refer the claim to QCAT to decide, if the chief executive 8
considers-- 9
(i) the claim could be more effectively or conveniently 10
decided by QCAT because of, for example, the 11
nature and complexity of the claim; or 12
(ii) it would be appropriate for the claim to be decided 13
by QCAT. 14
(2) However, if, under section 122, QCAT decides to extend the 15
time within which a claim must be filed, QCAT may also 16
decide the claim. 17
Subdivision 2 Procedure for chief executive to 18
decide claims 19
96 Chief executive must invite comments about inspector's 20
report 21
(1) This subdivision applies to a claim to be decided by the chief 22
executive. 23
(2) The chief executive, by written notice, must invite the 24
claimant and the respondent (the parties) to give the chief 25
executive written comments about the inspector's report 26
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[s 97]
prepared under section 94 within 14 days after giving the 1
notice. 2
(3) If the chief executive receives comments from a party, the 3
chief executive must provide each other party with a copy of 4
the comments and invite the parties to give the chief executive 5
any further comments within 14 days after giving the notice. 6
97 Amendment of claim 7
(1) The chief executive may, at any time before deciding the 8
claim, amend the particulars of the claim in the way the chief 9
executive considers appropriate-- 10
(a) on application, if the chief executive is satisfied the 11
amendment is of a formal or minor nature and no party 12
is unfairly prejudiced by the amendment; or 13
(b) on the chief executive's own initiative, if all the parties 14
agree. 15
(2) The amended claim is taken to be the claim. 16
98 Requiring information 17
(1) The chief executive may, by written notice, ask a person to-- 18
(a) give to the chief executive information in the person's 19
knowledge about a stated matter within a stated 20
reasonable time and in a stated reasonable way; 21
(b) give to the chief executive within a stated reasonable 22
time and in a stated reasonable way, a document or copy 23
of a document about a stated matter in the person's 24
possession or control. 25
(2) The chief executive may give a notice under subsection (1) 26
only if the information or document the subject of the notice is 27
reasonably required to decide the claim. 28
(3) A person must comply with a requirement under subsection 29
(1) unless the person has a reasonable excuse. 30
Maximum penalty--100 penalty units. 31
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[s 99]
(4) It is a reasonable excuse for a person not to give information 1
to the chief executive if doing so might tend to incriminate the 2
person. 3
99 Respondent fails to respond to claim 4
(1) This section applies if the chief executive is satisfied the 5
respondent-- 6
(a) has been given notice of the claim, but has not 7
responded to the claim; or 8
(b) can not be located after making reasonable inquiries into 9
the respondent's whereabouts; or 10
(c) has not been given notice of the claim because the chief 11
executive is not required to give the notice under section 12
91(2). 13
(2) The chief executive may consider and decide the claim in the 14
absence of any comments or submissions made by the 15
respondent. 16
100 Deciding claims 17
(1) The chief executive may decide to allow the claim, wholly or 18
partly, or reject the claim. 19
(2) However, the chief executive may decide to allow the claim 20
only if satisfied, on the balance of probabilities, that the 21
person may make the claim under division 2. 22
(3) The chief executive must have regard to the following when 23
deciding the claim-- 24
(a) the parties' comments given under section 96(2); 25
(b) any information or document given under section 98; 26
(c) any report prepared by an inspector under section 93. 27
(4) The chief executive must decide the claim without a hearing. 28
(5) If the chief executive decides to allow the claim, wholly or 29
partly, the chief executive must-- 30
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[s 101]
(a) take into account-- 1
(i) any amount the claimant might reasonably have 2
received or recovered if not for the claimant's 3
neglect or default; and 4
(ii) any amount ordered to be paid to the claimant as 5
compensation under the Property Occupations Act 6
2013, section 188, 204 or 228; and 7
(b) decide the amount of the claimant's financial loss; and 8
(c) name the respondent who is liable for the claimant's 9
financial loss. 10
101 Chief executive's decision binds the parties and no 11
extension of time is allowed 12
(1) If no application for review of the chief executive's decision is 13
made within the time allowed under the QCAT Act, section 14
33(3)-- 15
(a) the chief executive's decision is binding on the claimant 16
and the respondent; and 17
(b) the amount paid to the claimant from the fund in 18
accordance with the decision may be recovered by the 19
chief executive as a debt owing to the chief executive by 20
the respondent named in the decision; and 21
(c) the respondent may not subsequently challenge the 22
correctness of the decision or the amount payable. 23
(2) Section 122 and the QCAT Act, section 61 do not apply to 24
enable QCAT to extend the time within which a person may 25
seek a review under the QCAT Act, section 33(3). 26
102 Notifying decision 27
(1) The chief executive must give the parties an information 28
notice complying with the QCAT Act, section 157(2) for the 29
chief executive's decision under section 100(1). 30
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[s 103]
(2) However, the information notice need not include written 1
reasons for the decision. 2
(3) The information notice must include the following additional 3
information-- 4
(a) if reasons for the decision are not included in the 5
notice--that the parties may ask the chief executive to 6
give written reasons for the decision under the QCAT 7
Act, section 158; and 8
(b) if the decision is that an amount be paid to the claimant 9
from the fund-- 10
(i) that the respondent named in the decision is liable 11
to reimburse the fund to the extent of the amount 12
paid to the claimant from the fund; and 13
(ii) if more than 1 person is named as being liable to 14
reimburse the fund, that the liability of the persons 15
named is joint and several; and 16
(c) that if no application is made to have the decision 17
reviewed within the time allowed under the QCAT Act, 18
section 33(3)-- 19
(i) the decision is binding on the parties; and 20
(ii) if the decision is to allow the claim and authorise 21
payment from the fund, the respondent named in 22
the decision as liable to reimburse the fund is liable 23
to reimburse the fund to the extent of the amount 24
paid to the claimant from the fund. 25
103 Party may ask QCAT to review chief executive's decision 26
(1) A party who is dissatisfied with the chief executive's decision 27
under section 100 may apply, as provided under the QCAT 28
Act, to QCAT for a review of the decision. 29
(2) Any of the following who is not the party seeking the review 30
is a party to the review-- 31
(a) the claimant; 32
(b) the chief executive; 33
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[s 104]
(c) the person named by the chief executive as being liable 1
for the claimant's financial loss. 2
104 Public access to information about decisions 3
The chief executive may publish a decision made under this 4
division, with or without the reasons for the decision, in any 5
way the chief executive considers appropriate. 6
Division 5 QCAT proceedings 7
105 Deciding claims 8
(1) QCAT may decide to allow a claim wholly or partly, or reject 9
a claim. 10
(2) However, QCAT may decide to allow the claim only if 11
satisfied, on the balance of probabilities, that the person may 12
make the claim under division 2. 13
(3) If QCAT decides to allow the claim, wholly or partly, QCAT 14
must-- 15
(a) take into account-- 16
(i) any amount the claimant might reasonably have 17
received or recovered if not for the claimant's 18
neglect or default; and 19
(ii) any amount ordered to be paid to the claimant as 20
compensation under the Property Occupations Act 21
2013, section 188, 204 or 228; and 22
(b) decide the amount of the claimant's financial loss; and 23
(c) name the person who is liable for the claimant's 24
financial loss. 25
106 Orders QCAT may make on claim hearing 26
(1) QCAT may make the following orders for a claim against the 27
fund-- 28
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(a) an order allowing the claim, wholly or partly, or 1
rejecting the claim; 2
(b) an order stating that a named person is liable for a 3
claimant's financial loss and the amount of the loss; 4
(c) an order about recovery of an amount payable for a 5
claim. 6
(2) QCAT may make an order that no amount is to be reimbursed 7
to the fund for a claim by the respondent if QCAT is satisfied 8
any of the following have been appointed for the 9
respondent-- 10
(a) for a corporation--a liquidator, controller, administrator 11
or receiver under the Corporations Act; 12
(b) a trustee in bankruptcy. 13
107 QCAT to give chief executive final decision or notify chief 14
executive of appeal 15
(1) This section applies in relation to a proceeding in QCAT 16
involving a claim against the fund, if the chief executive is not 17
a party to the proceeding. 18
(2) QCAT must give the chief executive-- 19
(a) its final decision under the QCAT Act, section 20
121(1)(b); and 21
(b) if the tribunal gives written reasons for the decision--a 22
copy of the reasons. 23
(3) If a party to the proceedings appeals the final decision or 24
applies for leave to appeal the final decision, QCAT must give 25
the chief executive-- 26
(a) written notice of the appeal; and 27
(b) for an application for leave to appeal--a copy of the 28
application. 29
Page 74
Agents Financial Administration Bill 2013
Part 7 Claims against the fund
[s 108]
108 Application of QCAT Act, s 131 1
To remove any doubt, it is declared that the reference in the 2
QCAT Act, section 131(2) to a person includes a reference to 3
the chief executive. 4
Division 6 Deciding financial loss for 5
non-investment residential property 6
109 Application of div 6 7
This division applies if the chief executive or QCAT is 8
deciding a claimant's financial loss for realised capital loss 9
because of, or arising out of, a marketeering contravention 10
relating to the purchase of a non-investment residential 11
property. 12
110 General test for working out loss 13
(1) Subject to section 111, the financial loss is the amount of the 14
difference between the contract price or value for the property 15
paid by the claimant and the contract price or value for the 16
sale of the property by the claimant (the on-sale). 17
(2) The loss is only realised if the on-sale has been completed. 18
111 Adjustment for on-sale not at market value 19
(1) The chief executive or QCAT must decide whether the 20
contract price or value for the on-sale reasonably reflected the 21
property's market value when the contract was entered into. 22
(2) If the chief executive or QCAT decides the contract price or 23
value did not reasonably reflect the property's market value-- 24
(a) the chief executive or QCAT must fix what the 25
reasonable market value of the property was when the 26
contract was entered into; and 27
(b) for section 110(1), the contract price or value is taken to 28
be that fixed market value. 29
Page 75
Agents Financial Administration Bill 2013
Part 8 Payments from the fund
[s 112]
Part 8 Payments from the fund 1
Division 1 Payment and recovery of claims 2
112 Payment of claims 3
(1) If a claim is allowed under section 100 or 105 or on a review 4
of the chief executive's decision, the chief executive must 5
authorise payment from the fund in the amount decided by the 6
chief executive or QCAT. 7
(2) A payment under subsection (1)-- 8
(a) must not be made-- 9
(i) for a claim decided by the chief executive--until 10
the end of the period allowed for review of the 11
chief executive's decision and, if a review is 12
applied for, until the review and any appeal is 13
finally decided; or 14
(ii) otherwise--until the end of the period allowed for 15
appeal and, if an appeal is made, until the appeal is 16
finally decided; and 17
(b) is taken to be in full settlement of the claim against the 18
fund. 19
(3) Subsection (4) applies if the chief executive is satisfied all or 20
part of the amount of the claim relates to an amount the agent 21
has failed to pay to a relevant government agency on behalf of 22
a client. 23
(4) The chief executive may make all or part of the payment 24
directly to the relevant government agency instead of to the 25
claimant. 26
(5) This section is subject to section 113. 27
(6) In this section-- 28
relevant government agency means a government entity 29
under the Public Service Act 2008, section 24. 30
Page 76
Agents Financial Administration Bill 2013
Part 8 Payments from the fund
[s 113]
113 Limits on recovery from fund 1
(1) A claimant can not recover from the fund an amount more 2
than the balance of the claimant's financial loss after 3
deducting from the claimant's loss-- 4
(a) the amount, including the value of all benefits, received 5
or recovered by the claimant from a source other than 6
the fund, or from a special payment by the chief 7
executive, in reduction of the loss; and 8
(b) the amount, including the value of all benefits, the chief 9
executive or QCAT considers the claimant might 10
reasonably have received or recovered if not for the 11
claimant's neglect or default. 12
Examples of paragraph (a)-- 13
· compensation received from the agent for the loss 14
· a payment from a receiver for the loss 15
(2) A claimant may not recover from the fund for a single claim 16
an amount more than the amount prescribed under a 17
regulation. 18
(3) Also, the claimant may not recover more than $35000 from 19
the fund for a single claim for financial loss if the claim 20
relates to a non-investment residential property purchased by 21
the claimant because of, or arising out of, a marketeering 22
contravention. 23
(4) A regulation may prescribe the total amount that may be paid 24
from the fund because of, or arising out of, a contravention, 25
failure to ensure clear title to a vehicle, stealing, 26
misappropriation or misapplication by a single person. 27
(5) Interest is not payable from the fund for a claim allowed 28
against the fund. 29
114 Notice of other recovery 30
A claimant must give the chief executive written notice of an 31
amount or benefit, other than an amount from the fund, 32
received by the claimant for the claimant's financial loss, 33
whether before or after the claim is paid. 34
Page 77
Agents Financial Administration Bill 2013
Part 8 Payments from the fund
[s 115]
Maximum penalty--200 penalty units or 3 years 1
imprisonment. 2
Division 2 Special payments 3
115 Chief executive may make special payment 4
(1) The chief executive may make a payment from the fund to an 5
account (a special payment) if-- 6
(a) a direction has been given under section 42 for the 7
account because the chief executive believes conduct 8
mentioned in section 42(1) has occurred; and 9
(b) the chief executive is satisfied-- 10
(i) there are, or is likely to be, a significant number of 11
claims against the fund as a result of the alleged 12
conduct; and 13
(iii) an immediate special payment to the account is 14
necessary to substantially mitigate loss to the fund. 15
(2) The amount of the special payment must not exceed the 16
amount the chief executive believes has been stolen, 17
misappropriated or misapplied under section 42. 18
Division 3 Liability for payments 19
116 Liability for payment from the fund 20
(1) This section applies if-- 21
(a) a person is named in the chief executive's decision or 22
QCAT's order as being liable for a claimant's financial 23
loss; and 24
Note-- 25
See sections 100 (Deciding claims), 105 (Deciding claims) and 26
106 (Orders QCAT may make on claim hearing). 27
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Agents Financial Administration Bill 2013
Part 8 Payments from the fund
[s 117]
(b) an amount has, under section 112, been paid from the 1
fund in settlement of the claimant's claim. 2
(2) This section also applies if a person is the holder of an account 3
under part 4 in relation to which the chief executive makes a 4
special payment under section 115. 5
(3) A person mentioned in subsection (1)(a) or (2) is the 6
responsible person for the amount. 7
(4) Each of the following persons is jointly and severally liable to 8
reimburse the fund to the extent of the amount paid from the 9
fund for the claim or special payment-- 10
(a) the responsible person; 11
(b) if the responsible person is a corporation, each person 12
who was an executive officer of the corporation when 13
the relevant event mentioned in section 82 happened. 14
(5) The chief executive may recover as a debt from each person 15
mentioned in subsection (4) an amount for which the person 16
is, under the subsection, liable to reimburse the fund. 17
(6) Before taking action to recover the amount of the debt, the 18
chief executive must give a letter of demand to the debtor 19
requiring the debtor to pay the amount to the chief executive 20
within 28 days after receiving the letter. 21
Division 4 Applications for reimbursement 22
orders 23
117 Application for reimbursement order 24
(1) This section applies if-- 25
(a) for a claim against the fund-- 26
(i) the chief executive decides to allow, wholly or 27
partly, the claim under section 100; and 28
(ii) the responsible person liable to reimburse the fund 29
under section 116 has not done so as required 30
under a letter of demand given to the person under 1
Page 79
Agents Financial Administration Bill 2013
Part 8 Payments from the fund
[s 117]
section 116(6); or 2
(b) the chief executive has made a special payment under 3
section 115, and the person who is the holder of the 4
account under part 4 in relation to which the chief 5
executive made the special payment has not reimbursed 6
the fund as required under a letter of demand given to 7
the respondent under section 116(6); or 8
(c) a person is liable to reimburse the chief executive for a 9
receiver's remuneration and costs, and has not done so 10
as required under a letter of demand given to the person 11
under section 64(4); or 12
(d) a person is liable to reimburse the chief executive for an 13
investigator's remuneration and costs, and has not done 14
so as required under a letter of demand given to the 15
person under section 75(4). 16
(2) In this division, a respondent is a person mentioned in 17
subsection (1)(a)(ii), (b), (c) or (d). 18
(3) The chief executive may apply, as provided under the QCAT 19
Act, to QCAT for an order that the respondent reimburse the 20
fund or the chief executive. 21
(4) The application must be accompanied by the following 22
documents-- 23
(a) if the application relates to the reimbursement of a claim 24
against the fund--a copy of the information notice given 25
under section 101; 26
(b) a copy of the letter of demand given under section 64(4), 27
75(4) or 116(6); 28
(c) a statutory declaration by the chief executive stating-- 29
(i) the amount paid from the fund for the special 30
payment or in settlement of the claim, or the 31
amount paid to a receiver or investigator for 32
remuneration and costs; and 33
(ii) the amount of any payment received from the 34
respondent in satisfaction of the claim, special 35
Page 80
Agents Financial Administration Bill 2013
Part 8 Payments from the fund
[s 118]
payment or amount paid to the receiver or 1
investigator. 2
118 Respondent to be advised of application 3
(1) The chief executive must-- 4
(a) give a copy of the application and the accompanying 5
documents to the respondent; and 6
(b) advise the respondent that QCAT will make a 7
reimbursement order if satisfied that-- 8
(i) a letter of demand was sent to the respondent under 9
section 64(4), 75(4) or 116(6); and 10
(ii) the respondent has not paid the stated amount 11
within the time allowed under the letter of demand; 12
and 13
(iii) if the application relates to the reimbursement of a 14
claim against the fund or special payment--the 15
matters stated in subsection (2) apply; and 16
(c) advise the respondent that the respondent may make 17
written submissions for QCAT's consideration about 18
when and in what way the respondent intends to satisfy 19
the amount paid in settlement of the claim or as a special 20
payment or to a receiver or investigator. 21
(2) For subsection (1)(b)(iii), the matters are-- 22
(a) under the chief executive's decision the respondent is 23
liable to reimburse the fund in a stated amount; and 24
(b) an information notice under section 102 was given to the 25
respondent; and 26
(c) either-- 27
(i) the respondent did not apply to QCAT under 28
section 103 to have the decision reviewed; or 29
(ii) the decision has been reviewed by QCAT, and 30
under QCAT's decision, the respondent is liable to 31
Page 81
Agents Financial Administration Bill 2013
Part 8 Payments from the fund
[s 119]
reimburse an amount to the chief executive or the 1
fund. 2
119 Reimbursement orders 3
(1) QCAT must consider an application for a reimbursement 4
order and any written submissions made by the respondent for 5
the application. 6
(2) QCAT must make a reimbursement order if satisfied that-- 7
(a) the respondent has not paid the stated amount within the 8
time allowed under the letter of demand; and 9
(b) if the application relates to the reimbursement of a claim 10
against the fund--the matters stated in subsection (3) 11
apply. 12
(3) For subsection (2)(b), the matters are-- 13
(a) the chief executive has made a decision about a claim 14
against the fund; and 15
(b) under section 116 the respondent is liable to reimburse 16
the fund in a stated amount; and 17
(c) either-- 18
(i) the respondent did not apply to QCAT under 19
section 103 to have the decision reviewed; or 20
(ii) the decision has been reviewed by QCAT, and 21
under QCAT's decision, the respondent is liable to 22
reimburse an amount to the chief executive or the 23
fund; and 24
(d) written notice of the chief executive's decision, a copy 25
of the decision and an information notice under section 26
102 was given to the respondent. 27
(4) If QCAT makes a reimbursement order, the order must state 28
that the respondent is liable to pay to the chief executive a 29
stated amount within a stated period. 30
Page 82
Agents Financial Administration Bill 2013
Part 8 Payments from the fund
[s 120]
Division 5 Other reimbursements to fund 1
120 Recovery of payments--general 2
The chief executive must pay to the consolidated fund an 3
amount recovered by the chief executive in satisfaction of an 4
amount paid from the claim fund. 5
121 Recovery of overpayments 6
(1) This section applies if a claimant who has received a payment 7
from the fund-- 8
(a) recovers-- 9
(i) an amount more than the claimant is entitled to 10
recover under section 112 (the overpayment); or 11
(ii) a thing capable of physical delivery for which the 12
claimant received a payment from the fund; or 13
(b) is entitled to less than the amount of the payment under 14
the following-- 15
(i) QCAT's decision on review of the chief executive's 16
decision about the claimant's claim; 17
(ii) a decision on appeal against a decision by QCAT 18
about the claimant's claim. 19
(2) The difference in the amount the claimant is entitled to and 20
the amount of the payment mentioned in subsection (1)(b) is 21
also an overpayment. 22
(3) The claimant must-- 23
(a) reimburse the overpayment to the fund; or 24
(b) for a thing capable of physical delivery-- 25
(i) deliver the thing to the chief executive in 26
accordance with the chief executive's direction; or 27
(ii) reimburse to the fund the amount of the payment 28
from the fund the person received for the thing. 29
Page 83
Agents Financial Administration Bill 2013
Part 9 Other matters for proceedings relating to fund
[s 122]
Maximum penalty--200 penalty units. 1
(4) The chief executive may recover the overpayment or the 2
amount of the payment from the fund the person received for 3
the thing as a debt owing to the chief executive by the person. 4
(5) If the chief executive receives a thing, the chief executive may 5
deal with the thing in the way the chief executive decides. 6
Part 9 Other matters for proceedings 7
relating to fund 8
122 QCAT may extend time 9
(1) QCAT may extend the time within which to make a claim or 10
seek review of a decision of the chief executive if QCAT is 11
satisfied-- 12
(a) the application is made-- 13
(i) for a claim--within the time mentioned in the 14
notice given under section 88(5)(b); or 15
(ii) for a review of a decision of the chief 16
executive--within 42 days after the person is given 17
notice of the decision to be reviewed; and 18
(b) it is appropriate to extend time having regard to-- 19
(i) the reasons for not making the claim or seeking the 20
review within the time allowed; and 21
(ii) the application generally; and 22
(iii) for a claim, the relative hardship that an extension 23
of time or a refusal to extend time would place on 24
the claimant or respondent; and 25
(iv) the justice of the matter generally. 26
(2) No appeal lies against QCAT's decision under this section. 27
Page 84
Agents Financial Administration Bill 2013
Part 10 Injunctions and undertakings
[s 123]
(3) To remove any doubt, it is declared that the QCAT Act, 1
section 61 does not apply for a proceeding to which this 2
section applies. 3
123 Chief executive may make submissions 4
(1) This section applies if a proceeding in a court or tribunal 5
involves a claim against the fund. 6
(2) The chief executive may make submissions to the court or 7
tribunal, including submissions about liability for the 8
claimant's financial loss. 9
(3) Subsection (2) applies whether or not the chief executive is a 10
party to the proceeding. 11
124 Publication 12
A decision or order involving the claim fund must be 13
published under the QCAT Act, section 125. 14
Part 10 Injunctions and undertakings 15
Division 1 Injunctions 16
125 Grounds for injunction 17
The District Court may grant an injunction against a person (a 18
respondent) if the court is satisfied the respondent has 19
engaged, or is proposing to engage, in conduct that constitutes 20
or would constitute-- 21
(a) a contravention of this Act; or 22
(b) attempting to contravene this Act; or 23
(c) aiding, abetting, counselling or procuring a person to 24
contravene this Act; or 25
Page 85
Agents Financial Administration Bill 2013
Part 10 Injunctions and undertakings
[s 126]
(d) inducing or attempting to induce, whether by threats, 1
promises or otherwise, a person to contravene this Act; 2
or 3
(e) being in any way, directly or indirectly, knowingly 4
concerned in, or party to, the contravention by a person 5
of this Act; or 6
(f) conspiring with others to contravene this Act. 7
126 Who may apply for injunction 8
The following persons may apply to the District Court for an 9
injunction-- 10
(a) the chief executive; 11
(b) a person aggrieved by the respondent's conduct. 12
127 Injunctions 13
An injunction under this part may be granted by the District 14
Court against the respondent at any time. 15
128 Court's powers for injunctions 16
(1) The power of the District Court to grant an injunction 17
restraining a respondent from engaging in conduct may be 18
exercised-- 19
(a) whether or not it appears to the court the respondent 20
intends to engage again, or to continue to engage, in 21
conduct of that kind; and 22
(b) whether or not the respondent has previously engaged in 23
conduct of that kind. 24
(2) The power of the court to grant an injunction requiring a 25
respondent to do an act or thing may be exercised-- 26
(a) whether or not it appears to the court the respondent 27
intends to fail again, or to continue to fail, to do the act 28
or thing; and 29
Page 86
Agents Financial Administration Bill 2013
Part 10 Injunctions and undertakings
[s 129]
(b) whether or not the respondent has previously failed to 1
do the act or thing. 2
(3) An interim injunction may be granted under this part until the 3
application is finally decided. 4
(4) The District Court may rescind or vary an injunction at any 5
time. 6
129 Terms of injunction 7
(1) The District Court may grant an injunction in the terms the 8
court considers appropriate. 9
(2) Without limiting the court's power under subsection (1), an 10
injunction may be granted restraining a respondent from 11
carrying on a business as an agent-- 12
(a) for a stated period; or 13
(b) except on stated terms and conditions. 14
(3) Subsection (2) applies in relation to the respondent-- 15
(a) if the person is carrying on business as a 16
licensee--whether or not the person is licensed; and 17
(b) whether or not the business is carried on as part of, or 18
incidental to, the carrying on of another business. 19
(4) Also, the court may grant an injunction requiring a respondent 20
to take stated action, including action to disclose information 21
or publish advertisements, to remedy any adverse 22
consequences of the respondent's contravention of this Act. 23
130 Undertakings as to costs 24
If the chief executive applies for an injunction under this part, 25
no undertaking as to damages or costs may be required or 26
made. 27
Page 87
Agents Financial Administration Bill 2013
Part 10 Injunctions and undertakings
[s 131]
Division 2 Undertakings 1
131 Chief executive may seek undertaking after 2
contravention 3
(1) If the chief executive believes on reasonable grounds a person 4
has contravened or been involved in a contravention of this 5
Act, the chief executive may, by written notice given to the 6
person-- 7
(a) state the act or omission the chief executive believes is 8
the contravention; and 9
(b) ask the person to give the chief executive a written 10
undertaking that the person will not continue or repeat 11
the act or omission. 12
(2) The chief executive can not start an offence proceeding 13
against the person for the contravention if-- 14
(a) the person gives the undertaking; and 15
(b) the chief executive accepts the undertaking; and 16
(c) for a contravention consisting of a series of acts or 17
omissions, the person stops the acts or omissions. 18
(3) Subsection (2) does not apply if the chief executive withdraws 19
the undertaking under section 133. 20
132 Undertaking about other matter 21
Without limiting section 131, the chief executive may accept 22
an undertaking given by a person about anything for which the 23
chief executive or an inspector has a function or power. 24
Example of type of undertaking for this section-- 25
an undertaking to publish corrective advertising 26
133 Variation and withdrawal of undertakings 27
(1) If the chief executive accepts the undertaking, it may be 28
varied or withdrawn at any time by-- 29
Page 88
Agents Financial Administration Bill 2013
Part 10 Injunctions and undertakings
[s 134]
(a) the person who gave it, but only if the chief executive 1
agrees to the variation or withdrawal; or 2
(b) the chief executive, if the chief executive believes, on 3
reasonable grounds-- 4
(i) that, before it was accepted, the person who gave it 5
contravened this Act in a way unknown to the chief 6
executive; and 7
(ii) had the chief executive known about the 8
contravention, the chief executive would not have 9
accepted the undertaking or would not have 10
accepted it unless its terms were changed. 11
(2) The chief executive may also withdraw the undertaking if the 12
chief executive believes, on reasonable grounds, it is no 13
longer necessary. 14
(3) If the chief executive varies or withdraws, or agrees to the 15
variation or withdrawal of, the undertaking, the chief 16
executive must give the person who gave it written notice of 17
its variation or withdrawal. 18
(4) The variation or withdrawal takes effect when written notice 19
of the variation or withdrawal is given to the person. 20
134 Enforcement of undertakings 21
(1) If the chief executive believes, on reasonable grounds, a 22
person has contravened a term of an undertaking, the chief 23
executive may apply to the District Court for an order under 24
this section. 25
(2) If the court is satisfied the person has contravened the term, 26
the court may make 1 or more of the following orders-- 27
(a) an order directing the person to comply with the term; 28
(b) an order directing the person to pay to the State an 29
amount that is not more than the direct or indirect 30
financial benefit obtained by the person from, and 31
reasonably attributable to, the contravention; 32
Page 89
Agents Financial Administration Bill 2013
Part 10 Injunctions and undertakings
[s 135]
(c) an order directing the person to pay compensation to 1
someone else who has suffered loss or damage because 2
of the contravention; 3
(d) an order directing the person to give a security bond to 4
the State for a stated period; 5
(e) another order the court considers appropriate. 6
(3) The District Court may order the forfeiture to the State of all 7
or part of a security bond given by a person under subsection 8
(2)(d) if-- 9
(a) the chief executive applies to the court for the order; and 10
(b) the court is satisfied the person contravened the 11
undertaking during the period for which the bond was 12
given. 13
135 Register of undertakings 14
(1) The chief executive must keep a register of each undertaking 15
given to the chief executive by a person under this part. 16
(2) The register must contain a copy of the undertaking. 17
(3) A person may, on payment of any fee that may be prescribed 18
under a regulation, inspect, or get a copy of details in, the 19
register-- 20
(a) at a place or places decided by the chief executive; or 21
(b) by using a computer. 22
(4) If a fee is prescribed, a person may pay the fee, in advance or 23
in arrears, under an arrangement approved by the chief 24
executive. 25
(5) The register may be kept in the way the chief executive 26
considers appropriate. 27
(6) The chief executive may publish the information contained in 28
the register on the department's website. 29
Page 90
Agents Financial Administration Bill 2013
Part 11 General contraventions, evidentiary matters and legal proceedings
[s 136]
Part 11 General contraventions, 1
evidentiary matters and legal 2
proceedings 3
Division 1 General contraventions 4
136 Offence to deal with trust account 5
A person must not operate on a trust account unless the person 6
is-- 7
(a) an agent who is the holder of the account; or 8
(b) a person employed by the agent and authorised by the 9
agent to operate on the trust account; or 10
(c) otherwise permitted under this Act to operate on the 11
agent's trust account. 12
Maximum penalty--200 penalty units or 2 years 13
imprisonment. 14
137 False or misleading statements 15
(1) A person must not, for this Act, state anything to an official 16
the person knows is false or misleading in a material 17
particular. 18
Maximum penalty--200 penalty units or 2 years 19
imprisonment. 20
(2) In this section-- 21
official means-- 22
(a) the chief executive; or 23
(b) a public service employee. 24
Page 91
Agents Financial Administration Bill 2013
Part 11 General contraventions, evidentiary matters and legal proceedings
[s 138]
138 False or misleading documents 1
(1) A person must not, for this Act, give an official a document 2
containing information the person knows is false or 3
misleading in a material particular. 4
Maximum penalty--200 penalty units or 2 years 5
imprisonment. 6
(2) Subsection (1) does not apply to a person if the person, when 7
giving the document-- 8
(a) informs the official, to the best of the person's ability, 9
how it is false or misleading; and 10
(b) if the person has, or can reasonably obtain, the correct 11
information, gives the correct information. 12
(3) A person must not make an entry in a document required or 13
permitted to be made or kept under this Act knowing the entry 14
to be false or misleading in a material particular. 15
Maximum penalty--200 penalty units or 2 years 16
imprisonment. 17
(4) In this section-- 18
official means-- 19
(a) the chief executive; or 20
(b) a public service employee. 21
Division 2 Evidentiary matters 22
139 Evidentiary provisions 23
(1) This section applies to a proceeding under this Act. 24
(2) The appointment or power of an inspector must be presumed 25
unless a party, by reasonable notice, requires proof of-- 26
(a) the appointment; or 27
(b) the power to do anything under this Act. 28
Page 92
Agents Financial Administration Bill 2013
Part 11 General contraventions, evidentiary matters and legal proceedings
[s 140]
(3) A signature purporting to be the signature of the chief 1
executive or an inspector is evidence of the signature it 2
purports to be. 3
(4) A certificate purporting to be signed by the chief executive, a 4
member of QCAT, the principal registrar under the QCAT 5
Act or an inspector stating any of the following matters is 6
evidence of the matter-- 7
(a) a stated document is-- 8
(i) an order, direction, requirement or decision, or a 9
copy of an order, direction, requirement or 10
decision, given or made under this Act; or 11
(ii) a notice, or a copy of a notice, given under this 12
Act; or 13
(iii) a record, or a copy of a record, kept under this Act; 14
or 15
(iv) a document, or a copy of a document, kept under 16
this Act; 17
(b) on a stated day, a stated person-- 18
(i) was, or was not, the holder of a stated licence; or 19
(ii) was given a stated notice, order, requirement or 20
direction under this Act. 21
140 Entries in agent's documents 22
An entry in a document kept by or belonging to an agent or 23
found in the agent's premises is evidence that the entry has 24
been made by or with the authority of the agent. 25
Page 93
Agents Financial Administration Bill 2013
Part 11 General contraventions, evidentiary matters and legal proceedings
[s 141]
Division 3 Proceedings 1
141 Stopping contraventions 2
(1) This section applies if QCAT is satisfied, on application by 3
the chief executive, that a person is doing, or is about to do, 4
something in contravention of this Act. 5
(2) QCAT may, by order, prohibit the person who is doing or is 6
about to do the thing (the prohibited person) from starting or 7
continuing the thing. 8
(3) QCAT may make an order under this section on the chief 9
executive's application made without notice to the prohibited 10
person but, in that case, QCAT must allow the prohibited 11
person a reasonable opportunity to show cause why the order 12
should not be confirmed. 13
(4) If QCAT, after considering the prohibited person's evidence 14
and submissions, if any, and any further evidence or 15
submissions of the chief executive, is not satisfied the order 16
should continue in force, QCAT must rescind the order. 17
(5) A person must not contravene an order under this section. 18
Maximum penalty--540 penalty units. 19
(6) An order under this section has effect on the giving of a copy 20
of the order to the prohibited person. 21
142 Proceedings for an offence 22
(1) Subject to subsection (2), a proceeding for an offence against 23
this Act must be taken in a summary way under the Justices 24
Act 1886 within the later of the following-- 25
(a) 1 year after the offence is committed; 26
(b) 6 months after the commission of the offence comes to 27
the complainant's knowledge, but within 2 years after 28
the commission of the offence. 29
(2) A proceeding for an indictable offence may be taken, at the 30
prosecution's election-- 31
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[s 142]
(a) by way of summary proceedings under the Justices Act 1
1886; or 2
(b) on indictment. 3
(3) A proceeding against a person for an indictable offence must 4
be before a magistrate if it is a proceeding-- 5
(a) for the summary conviction of the person; or 6
(b) for an examination of witnesses relating to the charge. 7
(4) If a proceeding for an indictable offence is brought before a 8
justice who is not a magistrate, jurisdiction is limited to taking 9
or making a procedural action or order within the meaning of 10
the Justices of the Peace and Commissioners for Declarations 11
Act 1991. 12
(5) If-- 13
(a) a person charged with an indictable offence asks at the 14
start of a summary proceeding for the offence that the 15
charge be prosecuted on indictment; or 16
(b) the magistrate hearing a charge of an indictable offence 17
considers the charge should be prosecuted on 18
indictment; 19
the magistrate-- 20
(c) must not decide the charge as a summary offence; and 21
(d) must proceed by way of a committal proceeding. 22
(6) If a magistrate acts under subsection (5)-- 23
(a) any plea of the person charged, made at the start of the 24
proceeding, must be disregarded; and 25
(b) any evidence brought in the proceeding before the 26
magistrate decided to act under subsection (5) is taken to 27
be evidence in the proceeding for the committal of the 28
person for trial or sentence; and 29
(c) before committing the person for trial or sentence, the 30
magistrate must make a statement to the person under 31
the Justices Act 1886, section 104(2)(b). 32
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[s 143]
(7) The maximum penalty that may be imposed on a summary 1
conviction of an indictable offence is 200 penalty units or 1 2
year's imprisonment. 3
(8) In this section-- 4
indictable offence means an offence against this Act for 5
which the maximum penalty of imprisonment is more than 2 6
years. 7
143 Responsibility for acts or omissions of representatives 8
(1) This section applies in a proceeding for an offence against this 9
Act. 10
(2) If it is relevant to prove a person's state of mind about a 11
particular act or omission, it is enough to show-- 12
(a) the act was done or omitted to be done by a 13
representative of the person within the scope of the 14
representative's actual or apparent authority; and 15
(b) the representative had the state of mind. 16
(3) An act done or omitted to be done for a person by a 17
representative of the person within the scope of the 18
representative's actual or apparent authority is taken to have 19
been done or omitted to be done also by the person, unless the 20
person proves the person could not, by the exercise of 21
reasonable diligence, have prevented the act or omission. 22
(4) In this section-- 23
offence includes a contravention of this Act for which an 24
amount may be ordered by the District Court or QCAT to be 25
paid as a money penalty. 26
representative means-- 27
(a) of a corporation--an executive officer, employee or 28
agent of the corporation; or 29
(b) of an individual--an employee or agent of the 30
individual. 31
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[s 144]
state of mind, of a person, includes-- 1
(a) the person's knowledge, intention, opinion, belief or 2
purpose; and 3
(b) the person's reasons for the intention, opinion, belief or 4
purpose. 5
144 Chief executive's right of appeal against decision of 6
QCAT or appeal tribunal 7
(1) The chief executive may appeal against a decision of QCAT or 8
the appeal tribunal, but only on the ground of error of law. 9
(2) In this section-- 10
appeal tribunal means QCAT as constituted under the QCAT 11
Act, section 166 for an appeal. 12
145 Power of court 13
(1) A court may, in addition to any other penalty it may impose, 14
order that a licensee's licence be suspended for a stated period 15
or cancelled if the licensee has been convicted of an offence 16
against this Act. 17
(2) Subsection (3) applies if the court orders that an agent's 18
licence be cancelled and the agent is an individual. 19
(3) The court must also order that the agent is disqualified for a 20
stated period or permanently from either or both of the 21
following-- 22
(a) holding a licence under an Agents Act; 23
(b) performing a debt collection activity as authorised under 24
the Debt Collectors (Field Agents and Collection 25
Agents) Act 2013, section 19, in the carrying on of a 26
business, either alone or with others. 27
(4) The court may also order that a person convicted of an offence 28
against this Act be disqualified from holding a licence under 29
an Agents Act for a stated period or permanently. 30
(5) The court may make an order under subsection (1) or (4)-- 31
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Part 12 General
[s 146]
(a) on the chief executive's application; or 1
(b) on its own initiative. 2
(6) If an order is made by a court under this section on the court's 3
own initiative, the court must cause a copy of the order to be 4
given to the chief executive. 5
146 Allegations of false or misleading representations or 6
statements etc. 7
In a proceeding for an offence against this Act involving a 8
false or misleading statement, representation or entry, or false 9
or misleading information, it is enough for a charge to state 10
that the statement, representation, entry or information was 11
`false or misleading'. 12
Part 12 General 13
147 Application of particular provisions to appointees under 14
an Agents Act 15
(1) This section applies in relation to an activity performed by an 16
appointee for an agent. 17
(2) Parts 2 and 3 apply to the appointee as if the appointee were 18
the agent. 19
(3) In this section-- 20
appointee means an appointee within the meaning of the 21
following-- 22
(a) the Debt Collectors (Field Agents and Collection 23
Agents) Act 2013, section 6(1); 24
(b) the Motor Dealers and Chattel Auctioneers Act 2013, 25
section 7(1); 26
(c) the Property Occupations Act 2013, section 6(1). 27
Page 98
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[s 148]
148 Public warning statements 1
(1) The Minister or chief executive may make a public statement 2
identifying and giving warnings or information about the 3
commission of offences against this Act and persons who 4
commit the offences. 5
(2) The statement may identify particular offences and persons. 6
(3) The Minister or chief executive must not make or issue a 7
statement under this section unless satisfied it is in the public 8
interest to do so. 9
149 Civil remedies not affected 10
Nothing in this Act affects or limits a civil remedy that a 11
person may have against an agent or another person for a 12
matter. 13
150 Criminal Proceeds Confiscation Act 2002 not limited 14
Nothing in this Act limits the Criminal Proceeds Confiscation 15
Act 2002. 16
151 Delegation--chief executive 17
(1) The chief executive may delegate the chief executive's 18
powers, other than power under section 115 or 147, to an 19
appropriately qualified public service employee. 20
(2) In subsection (1)-- 21
appropriately qualified includes having the qualifications, 22
experience or standing appropriate to exercise the power. 23
Example of standing-- 24
the level at which a person is employed within the department 25
152 Approved forms 26
The chief executive may approve forms for use under this Act. 27
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[s 153]
153 Regulation-making power 1
(1) The Governor in Council may make regulations under this 2
Act. 3
(2) Without limiting subsection (1), a regulation may be made 4
about the following-- 5
(a) ways in which amounts may be paid from a trust 6
account; 7
(b) the audit of trust accounts and documents; 8
(c) the keeping of records, including the form in which 9
records are to be kept; 10
(d) the keeping of receipts and evidence of expenditure; 11
(e) the length of time documents required to be kept under 12
this Act are to be kept; 13
(f) imposing a penalty for a contravention of a regulation of 14
not more than 20 penalty units. 15
Part 13 Transitional provisions 16
154 Definition for pt 13 17
In this part-- 18
commencement means the day this section commences. 19
155 Claim fund 20
(1) The rights and liabilities of the claim fund under the repealed 21
Act (the former fund) are taken to be the rights and liabilities 22
of the claim fund under this Act (the current fund). 23
(2) A claim that has been made against the former fund, and not 24
finished before the commencement, continues as if it were a 25
claim against the current fund. 26
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[s 156]
(3) A person who could have made a claim against the former 1
fund but did not make the claim before the commencement 2
may make the claim against the current fund under this Act, if 3
the time allowed for bringing the proceeding under the 4
repealed Act has not expired. 5
(4) If, before the commencement, the chief executive had started 6
a proceeding to recover an amount paid out of the former 7
fund, the proceeding is taken to have been started by the chief 8
executive under this Act as if the amount had been paid out of 9
the current fund. 10
(5) If, had the repealed Act not been repealed, the chief executive 11
could start a proceeding to recover an amount paid out of the 12
former fund, the chief executive may start the proceeding as if 13
the amount had been paid out of the current fund. 14
(6) This Act applies to a proceeding under subsection (4) or (5), 15
with necessary changes. 16
156 Existing special investigators 17
A person who, immediately before the commencement, held 18
an appointment as a special investigator under the repealed 19
Act is taken, on the commencement, to be appointed as a 20
special investigator under this Act. 21
157 Continuation of reviews under the repealed Act 22
(1) Subsection (2) applies if-- 23
(a) a person applied to QCAT under the repealed Act, 24
section 483 or 501 for a review of a decision of the chief 25
executive; and 26
(b) the review had not been decided before the 27
commencement. 28
(2) QCAT may hear, or continue to hear, and decide the review 29
under the repealed Act as if that Act had not been repealed. 30
(3) Subsection (4) applies if-- 31
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[s 158]
(a) a person could have applied under the repealed Act, 1
section 483 or 501 for a review of a decision of the chief 2
executive; but 3
(b) the person had not applied before the commencement. 4
(4) The person may apply for a review of the decision under the 5
repealed Act as if that Act had not been repealed. 6
158 Proceedings 7
(1) This section applies to a proceeding that has, or could have, 8
been started under the repealed Act because of an event that 9
happened before the commencement, if the proceeding is 10
about an event for which a legal proceeding can be started 11
under this Act. 12
(2) If the proceeding was brought under the repealed Act and has 13
not been finished before the commencement, the proceeding 14
may be continued and finished under the repealed Act. 15
(3) Subsection (4) applies if-- 16
(a) the proceeding had not, but could have, been started 17
under the repealed Act; and 18
(b) the time allowed for bringing the proceeding has not 19
expired. 20
(4) The proceeding may be started under this Act. 21
159 Injunctions relating to pre-commencement conduct 22
(1) An injunction granted by the District Court under the repealed 23
Act and in force immediately before the commencement 24
continues from the commencement according to its terms, as 25
if it had been granted under part 10, division 1. 26
(2) In addition to the grounds in section 125, the District Court 27
may grant an injunction under part 10 if the court is satisfied a 28
person has, before the commencement, engaged in conduct 29
that constituted-- 30
(a) a contravention of the repealed Act; or 31
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Part 13 Transitional provisions
[s 160]
(b) an attempt to contravene the repealed Act; or 1
(c) aiding, abetting, counselling or procuring a person to 2
contravene the repealed Act; or 3
(d) inducing or attempting to induce, whether by threats, 4
promises or otherwise, a person to contravene the 5
repealed Act; or 6
(e) being in any way, directly or indirectly, knowingly 7
concerned in, or party to, the contravention by a person 8
of the repealed Act; or 9
(f) conspiring with others to contravene the repealed Act. 10
160 Undertakings relating to pre-commencement conduct 11
(1) An undertaking given by a person to the chief executive under 12
the repealed Act, and in force immediately before the 13
commencement, continues from the commencement as an 14
undertaking according to its terms as if it were given under 15
part 10, division 2. 16
(2) The provisions of this Act relating to undertakings apply to an 17
undertaking continued under subsection (1). 18
(3) If the chief executive reasonably believes a person has, before 19
the commencement, contravened or been involved in a 20
contravention of the repealed Act, section 131 of this Act 21
applies as if a reference in that section to this Act were a 22
reference to the repealed Act. 23
161 Continuation of register of undertakings 24
The register of undertakings kept under the repealed Act is 25
continued in existence and taken to be the register of 26
undertakings under this Act. 27
162 Existing approved financial institutions 28
A financial institution that, immediately before the 29
commencement, was an approved financial institution under 30
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[s 163]
the repealed Act, is taken from the commencement to be an 1
approved financial institution under this Act. 2
163 Existing agreements with financial institutions 3
(1) This section applies to an agreement entered into between the 4
chief executive and an approved financial institution under the 5
repealed Act about the keeping of general trust accounts by 6
licensees that is in force immediately before the 7
commencement. 8
(2) From the commencement, the agreement is taken to be an 9
agreement entered into between the chief executive and a 10
financial institution about the keeping of general trust 11
accounts by agents under this Act. 12
164 Existing trust accounts 13
A general trust account or special trust account opened under 14
the repealed Act, and still open immediately before the 15
commencement, is taken from the commencement to be a 16
general trust account or special trust account under this Act. 17
165 Existing auditors 18
(1) Subsection (2) applies if, immediately before the 19
commencement, a person was appointed as an approved 20
auditor for a stated licensee under the repealed Act, section 21
394. 22
(2) The following applies-- 23
(a) the person's appointment as an auditor continues under 24
the repealed Act; and 25
(b) the repealed Act, chapter 12, part 2, division 2 continues 26
to apply in relation to the auditor until the auditor's 27
appointment ends under those provisions. 28
(3) Subsection (4) applies to an auditor other than an approved 29
auditor appointed for a licensee under the repealed Act. 30
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Part 13 Transitional provisions
[s 166]
(4) From the commencement, the person is taken to be an auditor 1
under this Act, as if the person had been appointed by the 2
agent under section 30. 3
166 New approved auditors 4
(1) This section applies if a person had applied to the chief 5
executive to be an approved auditor for a licensee and 6
immediately before the commencement the application had 7
not been decided. 8
(2) The repealed Act applies to the application as if it had not 9
been repealed. 10
(3) If the application is approved under the repealed Act, section 11
394, the person is taken to be an auditor under this Act, as if 12
the person were appointed under section 30. 13
167 Existing audits 14
(1) This section applies if, immediately before the 15
commencement, an audit had been started, but not completed, 16
under the repealed Act. 17
(2) From the commencement, the requirements for audits under 18
the repealed Act continue to apply to the audit. 19
168 Existing disputes about trust money 20
(1) A dispute about trust money arising and not resolved before 21
the commencement is taken to be a dispute arising under this 22
Act. 23
(2) For subsection (1), a written notice given or anything done or 24
given under the repealed Act is taken to be a notice given or 25
something done or given under this Act. 26
169 Existing receivers 27
(1) A receiver over property appointed by the chief executive 28
under the repealed Act whose appointment is in force 29
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[s 170]
immediately before the commencement, is taken, from the 1
commencement, to be a receiver over the property appointed 2
under this Act. 3
(2) If the receiver is in possession of the property immediately 4
before the commencement, the receiver is taken from the 5
commencement to be in possession of the property under this 6
Act. 7
170 Receivership property 8
(1) This section applies if, immediately before the 9
commencement, an order was in force under the repealed Act 10
for a person in possession of receivership property to give 11
possession of it to a receiver. 12
(2) From the commencement, the order is taken to have been 13
made under this Act. 14
171 Proceedings for offences under the repealed Act 15
(1) This section applies if a person is alleged to have committed 16
an offence against any of the following provisions of the 17
repealed Act before the commencement-- 18
(a) section 375(1) or (2), 376(1) or (2) or 377(2); 19
(b) section 379, 380(2) or 381(1) or (2); 20
(c) section 384(1) or (2), 385(1) or (4) or 386(1); 21
(d) section 388, 389 or 390(2); 22
(e) section 392(1), 396(2) or 397(2), (3) or (4); 23
(f) section 402(2), 404 or 405(3); 24
(g) section 406(2), 407(1) or 413(1) or (4); 25
(h) section 414, 420(5), 422(2); 26
(i) section 426, 428 or 436(2), (3) or (5); 27
(j) section 443(1), 475(2) or (5) or 493; 28
(k) section 495(2), 529A(6) or 558; 29
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Part 13 Transitional provisions
[s 172]
(l) section 580, 582(1), 583(1) or (3) or 591(2). 1
(2) Without limiting the Acts Interpretation Act 1954, section 20, 2
the following applies as if the repealed Act had not been 3
repealed-- 4
(a) proceedings for the offence may be started, continued or 5
completed under the repealed Act; 6
(b) a court may hear and decide the proceedings under the 7
repealed Act; 8
(c) a document relevant to the proceedings and given 9
evidentiary effect under the repealed Act continues to 10
have the evidentiary effect. 11
(3) Subsection (2) applies despite the Criminal Code, section 11. 12
172 Existing delegations 13
If, immediately before the commencement, a power of the 14
chief executive had been delegated under section 597 of the 15
repealed Act to a person, the person is taken, from the 16
commencement, to hold an equivalent delegation under this 17
Act. 18
Page 107
Agents Financial Administration Bill 2013
Schedule 1
Schedule 1 Dictionary 1
section 7 2
account, for part 4, see section 41. 3
agent-- 4
(a) generally--see section 8; and 5
(b) for part 3, division 3--see section 33; and 6
(c) for part 4--see section 41; and 7
(d) for part 7--see section 80. 8
Agents Act means the following-- 9
(a) the Debt Collectors (Field Agents and Collection 10
Agents) Act 2013; 11
(b) the Motor Dealers and Chattel Auctioneers Act 2013; 12
(c) the Property Occupations Act 2013. 13
amount in dispute see section 25(1)(b). 14
approved financial institution means a financial institution 15
that has entered into an agreement with the chief executive 16
under section 14. 17
arrangement includes agreement, promise, scheme, 18
transaction (with or without consideration), understanding 19
and undertaking (whether express or implied). 20
audit month, for part 3, division 3, see section 33. 21
auditor, for part 3, see section 29. 22
audit period, for part 3, division 3, see section 33. 23
audit report, for part 3, division 3, see section 33. 24
chattel auctioneer, for part 7, see section 80. 25
claimant, for part 7, see section 80. 26
claim fund means the claim fund established under section 27
78. 28
Page 108
Agents Financial Administration Bill 2013
Schedule 1
claim notice, for part 7, see section 80. 1
client, of an agent, means the person who appoints the agent 2
to perform an activity. 3
collection agent means a collection agent under the Debt 4
Collectors (Field Agents and Collection Agents) Act 2013. 5
conviction includes a plea of guilty or a finding of guilt by a 6
court, but does not include a plea of guilty or a finding of guilt 7
by a court if no conviction is recorded by the court. 8
defalcation, for part 4, see section 41. 9
employ includes-- 10
(a) engage on a contract for services or commission and use 11
the services of, whether or not for reward; and 12
(b) directly engage a person as an independent contractor; 13
and 14
(c) engage a person from a labour hire provider. 15
executive officer, for a corporation, means a person, by 16
whatever name called and whether or not the person is a 17
director of the corporation, who is concerned, or takes part, in 18
the management of the corporation. 19
financial loss, for part 7, see section 80. 20
former licensee means a person who held a licence under this 21
Act or the repealed Act. 22
FTI Act see section 5(1). 23
fund means the claim fund. 24
holder-- 25
(a) of an account, means the agent or other person 26
authorised to operate on the account; or 27
(b) of a licence, means the person in whose name the 28
licence is issued. 29
in charge, of an agent's business, means in charge within the 30
meaning of the Agents Act under which the agent conducts 31
the business. 32
Page 109
Agents Financial Administration Bill 2013
Schedule 1
inspector means a person who holds office under the FTI Act 1
as an inspector for this Act. 2
licence means a licence issued under an Agents Act. 3
licensed, for a person, means licensed under an Agents Act. 4
licensee means the holder of a licence under an Agents Act, 5
that is in force. 6
marketeering contravention, for part 7, see section 80. 7
misleading includes deceptive. 8
money, for part 4, see section 41. 9
motor dealer, for part 7, see section 80. 10
motor vehicle, for part 7, see section 80. 11
non-investment residential property see section 81. 12
obstruct includes hinder, delay and attempt to obstruct. 13
on-sale see section 110(1). 14
parties, to a claim, see section 96(2). 15
principal agent means the following-- 16
(a) if the agent is a licensee--a licensee that carries on 17
business under the licensee's licence on the licensee's 18
own behalf; 19
(b) a collection agent that carries on business as a collection 20
agent on the agent's own behalf. 21
receiver means a receiver appointed under section 50. 22
receivership property, for part 4, see 50(2). 23
registered office see section 80. 24
relevant activity, for a debt collector for part 7, see section 80. 25
relevant person, for part 7, see section 80. 26
repealed Act means the Property Agents and Motor Dealers 27
Act 2000. 28
representation means a statement, promise, publication and 29
other representation made in any way. 30
Page 110
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Schedule 1
residential property see section 80. 1
respondent-- 2
(a) for part 7, see section 80; and 3
(b) for part 8, see section 117(2); and 4
(c) for part 10, see section 125. 5
reward includes remuneration of any kind including, for 6
example, any fee, commission or gain. 7
sell includes agree to sell, advertise or display for sale, 8
attempt to sell, have for sale, negotiate for a sale, and in any 9
way be concerned in selling. 10
special investigator means a special investigator appointed 11
under section 70. 12
special payment see section 115. 13
trust account means a trust account kept under this Act. 14
trust money includes an amount that was, or ought, under this 15
Act, to have been, deposited in a trust account by an agent. 16
trust property, for part 4, see section 41. 17
© State of Queensland 2013
Authorised by the Parliamentary Counsel
Page 111
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