Version No. 113 Estate Agents Act 1980 No. 9428 of 1980 Version incorporating amendments as at 1 July 2012 table of provisions Section Page 1 Short title and commencement 1 2 Repealed 1 1 3 Repealed 1 4 Definitions 2 5 Act not to apply to Government Departments etc. 17 21 6 Estate Agents Council 21 6A Objectives of the Council 23 6B Functions and powers of the Council 24 6C Meetings of the Council 26 28 7 Function of Authority 28 7A–7H Repealed 21 8 Powers of Authority to enter into agreements 28 8A Repealed 28 9 Functions of Director 28 10 Powers of Director to enter into agreements 29 10A–10D Repealed 29 11 Delegation by Director 29 11A Delegation by Secretary 30 31 12 Estate agents to be licensed 31 12A–12C Repealed 32 13 Agents' representatives 32 13A Estate agents to be responsible for the acts of their representatives 33
S. 4 amended by No. 72/2001 s. 3(Sch. item 7.2) (ILA s. 39B(1). 4 Definitions s. 4 (1) In this Act unless inconsistent with the context or subject-matter— S. 4(1) def. of accounting records inserted by No. 10028 s. 4(a), amended by No. 86/1994 s. 5(a), substituted by No. 44/2001 s. 3(Sch. item 39.1(a)). accounting records has the same meaning as financial records has in the Corporations Act; S. 4(1) def. of agent's representative inserted by No. 86/1994 s. 5(b). agent's representative means any person— (a) who is not a licensed estate agent but who— (i) is employed by, or who acts for or by arrangement with, a licensed estate agent; or (ii) is a director, member or officer of a corporation that is a licensed estate agent; and (b) who performs for that estate agent any of the functions of an estate agent (other than work ordinarily performed by clerks, cashiers or accountants)— regardless of whether his or her remuneration is by way of salary, wages, commission or otherwise;
S. 4(1) def. of approved auditor inserted by No. 41/2003 s. 12(1)(d), amended by Nos 63/2010 s. 35(1)(a), 36/2011 s. 3. approved auditor means a person who— (a) is a member of CPA Australia, the Institute of Public Accountants or The Institute of Chartered Accountants in Australia; and (b) meets the requirements of one of those bodies to practise as a public accountant; * * * * * s. 4 S. 4(1) def. of approved industry association inserted by No. 52/1998 s. 66(a), amended by Nos 41/2003 s. 12(1)(a), 1/2010 s. 4(2). approved industry association means— (a) The Real Estate Institute of Victoria Ltd.; (b) the Australian Livestock & Property Agents Association Limited ACN 096 142 880; (c) any other industry association approved by the Minister by notice published in the Government Gazette; S. 4(1) def. of approved names inserted by No. 10028 s. 4(a), repealed by No. 86/1994 s. 5(c). * * * * * S. 4(1) def. of authorised deposit-taking institution inserted by No. 11/2001 s. 3(Sch. item 24.1(a)). authorised deposit-taking institution has the same meaning as in the Banking Act 1959 of the Commonwealth;
S. 4(1) def. of Board repealed by No. 86/1994 s. 5(c). * * * * * S. 4(1) def. of books inserted by No. 10028 s. 4(b), amended by Nos 86/1994 s. 5(e), 44/2001 s. 3(Sch. item 39.1(c)). books has the same meaning as in the Corporations Act; S. 4(1) def. of branch manager amended by No. 86/1994 s. 5(f). branch manager means a person permitted by section 30 to manage a branch office; S. 4(1) def. of branch office substituted by No. 10028 s. 4(c). branch office means an office in which the business of a licensed estate agent is conducted other than a principal office; S. 4(1) def. of business amended by No. 10028 s. 4(d). s. 4 business means any hotel business, business, storekeeper's business, manufacturing business, professional business, service business or any trading business whatsoever, and includes any share or interest in or concerning any stock goodwill or other property or assets included in any transaction relating to a business; S. 4(1) def. of business day substituted by No. 63/2010 s. 35(2). business day means a day that is not— (a) a Saturday or a Sunday; or (b) a day that is appointed as a public holiday or public half-holiday throughout the whole of under the Public Holidays Act 1993;
S. 4(1) def. of estate agent or agent amended by Nos 10028 s. 4(e), 41/2003 s. 12(1)(b)(i)(ii). estate agent or agent means any person (whether or not he carries on any other business) who exercises or carries on or advertises or notifies or states that he exercises or carries on or that he is willing to exercise or carry on or in any way holds himself out to the public as ready to undertake the business of— (a) selling buying exchanging letting or taking on lease of or otherwise dealing with or disposing of; (b) negotiating for the sale purchase exchange letting or taking on lease of or any other dealing with or disposition of; (c) collecting rents for— * * * * * any real estate or business on behalf of any other person; s. 4 estate agent's licence means a valid and unexpired estate agent's licence under this Act; S. 4(1) def. of corporation inserted by No. 86/1994 s. 5(j), substituted as body corporate by No. 101/1998 s. 37(1)(a), amended by No. 44/2001 s. 3(Sch. item 39.1(c)). externally-administered body corporate has the same meaning as in the Corporations Act;
prescribed means prescribed by this Act or the regulations or rules; S. 4(1) def. of professional conduct rules inserted by No. 86/1994 s. 5(n), amended by No. 63/2010 s. 35(1)(b). professional conduct rules means the regulations made, or deemed to have been made, under section 99(1)(gg); S. 4(1) def. of publish inserted by No. 41/2003 s. 12(1)(d). publish means publish by any means, including by publication on the Internet; real estate includes— (i) any estate or interest in land or buildings; (ii) any share or shares in any company limited by shares entitling the holder thereof to the exclusive right to occupy a specified building or part of a building; and s. 4 (iii) any goods chattels or other property or assets included in any transaction relating to real estate; S. 4(1) def. of rebate inserted by No. 41/2003 s. 7. rebate includes any discount, commission or other benefit; S. 4(1) def. of record amended by No. 86/1994 s. 5(o), repealed by No. 52/1998 s. 66(d). * * * * *
S. 4(1) def. of residence right inserted by No. 17/2004 s. 3(a). residence right has the same meaning as in the Retirement Villages Act 1986; S. 4(1) def. of residential property amended by No. 53/1988 s. 45(Sch. 3 item 13) (as amended by No. 47/1989 s. 23(2)). residential property means a dwelling-house together with any yard garden outhouses and appurtenances belonging thereto or usually enjoyed therewith and includes a flat and also any allotment or lot suitable as a site for a single dwelling-house or for a building consisting of not more than two separate dwelling-houses; S. 4(1) def. of retirement village inserted by No. 17/2004 s. 3(a). retirement village has the same meaning as in the Retirement Villages Act 1986; S. 4(1) def. of rules repealed by No. 86/1994 s. 5(p). * * * * * S. 4(1) def. of secretary repealed by No. 9925 s. 2(b), new def. of Secretary inserted by No. 52/1998 s. 66(f), amended by No. 108/2004 s. 117(1) (Sch. 3 item 71.1). s. 4 Secretary means the person for the time being holding the office of Secretary to the Department of Justice under the Public Administration Act 2004; S. 4(1) def. of sell inserted by No. 86/1994 s. 5(r). sell includes to sell by auction;
S. 4(4) inserted by No. 41/2003 s. 12(2). (4) A reference in this Act to "people" includes a reference to bodies corporate and politic, unless the contrary intention appears. 5 Act not to apply to Government Departments etc. s. 5 S. 5(1) amended by No. 10028 s. 5(a). (1) This Act shall not be construed as requiring— (a) any responsible Minister of the Crown or any Government Department; S. 5(1)(b) amended by Nos 41/1987 s. 103(Sch. 4 item 17.2), 29/1988 s. 57(5), 44/1988 s. 60(1), 94/1990 s. 40(4), 50/1992 s. 10(Sch. item 3), 130/1993 s. 122(Sch. 4 item 4), 53/1994 s. 34(Sch. 1 item 2), 86/1994 s. 45(a), 110/1994 s. 41(Sch. 1 item 3), 56/1995 s. 68(Sch. 1 item 1), 104/1997 s. 46, 46/1998 s. 7(Sch. 1) (as amended by No. 12/1999 s. 3(Sch. 1 item 9)), 6/2010 s. 203(1) (Sch. 6 item 21) (as amended by No. 45/2010 s. 22). (b) the Director of Housing the Rural Water Corporation the Public Transport Corporation, Victorian Rail Track within the meaning of section 3 of the Transport Integration Act 2010, the Secretary to the Department of Natural Resources and Environment, the Roads Corporation the State Electricity Commission of Victoria Generation Victoria, National Electricity, VPX, the Rural Finance Corporation of Victoria;
12 Estate agents to be licensed S. 12(1) amended by No. 86/1994 s. 6(1). (1) Subject to this Act an individual shall not either by himself or as a member of a partnership— (a) exercise or carry on or advertise notify or state that he exercises or carries on or is willing to exercise or carry on the business of an estate agent; or s. 12 (b) act as an estate agent; or (c) in any way hold himself out to the public as ready to undertake for payment or other remuneration (whether monetary or otherwise) any of the functions of an estate agent— unless he is a licensed estate agent. 500 penalty units or imprisonment for 12 months. S. 12(2) amended by No. 86/1994 s. 6(2). (2) Subject to this Act a corporation shall not— (a) exercise or carry on or advertise notify or state that it exercises or carries on or is willing to exercise or carry on the business of an estate agent; or (b) act as an estate agent; or (c) in any way hold itself out to the public as ready to undertake for payment or other remuneration (whether monetary or otherwise) any of the functions of an estate agent— unless it is a licensed estate agent. 1000 penalty units. S. 12(3) amended by Nos 38/1993 s. 6(b), 17/2004 s. 10(1). (3) Where a licensed estate agent does not carry on business as an estate agent otherwise than as an employee of an estate agent—
S. 15(2) amended by Nos 10028 s. 9(b)(c), 86/1994 s. 47(e)(iii) (v)–(vii), substituted by No. 41/2003 s. 20(2), repealed by No. 103/2004 s. 37. s. 15 * * * * * S. 15(2A) inserted by No. 10028 s. 9(d), amended by Nos 86/1994 s. 47(e)(v)(vii), 72/2001 s. 3(Sch. item 7.3(b)), substituted by No. 41/2003 s. 20(2), repealed by No. 103/2004 s. 37. * * * * * S. 15(3) amended by Nos 9500 s. 3(a), 86/1994 s. 47(e)(iii), substituted by No. 41/2003 s. 20(2). (3) A corporation is not eligible to be granted an estate agent's licence if any of its directors would be ineligible, under section 14(5), to be granted an estate agent's licence as an individual. S. 15(3A) inserted by No. 9500 s. 3(b), amended by No. 86/1994 s. 47(d), repealed by No. 41/2003 s. 20(2). * * * * *
S. 21(4A) inserted by No. 10028 s. 14, amended by No. 86/1994 s. 47(k). (4A) A licence granted under subsection (4) shall be subject to such conditions and limitations as the Authority sees fit to impose. S. 21(4B) inserted by No. 86/1994 s. 12(5), amended by No. 52/1998 s. 75(2). (4B) If the Authority is not satisfied of any thing referred to in subsection (4) in relation to an applicant, it must refuse to issue a licence to the applicant and must give the applicant written notice of the refusal within 14 days of the refusal. S. 21(4C)(4D) inserted by No. 86/1994 s. 12(5), repealed by No. 52/1998 s. 75(3). * * * * * s. 21 S. 21(5) amended by No. 9925 s. 5(a), substituted by Nos 86/1994 s. 12(6), 52/1998 s. 75(4). (5) A licence— (a) must be in a form determined by the Authority; and (b) must be issued and signed by the Registrar; and (c) must be endorsed with any conditions and limitations imposed by the Authority under subsection (4A). S. 21(5A) inserted by No. 86/1994 s. 12(6). (5A) A decision of the Authority to grant a licence lapses unless the applicant for the licence pays the prescribed licence fee to the Authority within 28 days of receiving written notice from the Authority that it has granted the licence. S. 21(6) substituted by No. 86/1994 s. 12(6). (6) The Authority may postpone its consideration of an application for a licence until such time as it considers appropriate.
S. 28 amended by Nos 9925 s. 5(a), 10028 s. 17, substituted by No. 86/1994 s. 16. 28 Inquiries into agents' representatives s. 28 S. 28(1) amended by No. 52/1998 s. 81(1). (1) At any time the Director may apply to the Tribunal for the holding of an inquiry to determine whether an agent's representative— (a) is eligible to be an agent's representative; or (b) is of good character or is otherwise a fit and proper person to be an agent's representative; or (c) has been guilty of conduct as an agent's representative which renders him or her unfit to be an agent's representative; or S. 28(1)(ca) inserted by No. 41/2003 s. 27(3). (ca) has contravened or failed to comply with the of Land Act 1962; or (d) has contravened or failed to comply with this Act or the regulations. S. 28(2)–(5) repealed by No. 52/1998 s. 81(2). * * * * * S. 28A inserted by No. 52/1998 s. 82. 28A Determination of Tribunal on inquiry (1) After conducting an inquiry in respect of a person under section 25 or 28, the Tribunal, if it considers it appropriate, may, by order, do any one or more of the following— (a) reprimand the person; (b) require the person to comply within, or for, a specified time with a requirement specified by the Tribunal;
(5) A person in respect of whom permission has been given is eligible to act as an agent's representative, despite section 16(1)(f). S. 31B inserted by No. 86/1994 s. 20. 31B Bankrupt person may be allowed limited right to hold licence etc. s. 31B (1) This section applies to a person who is an insolvent under administration. S. 31B(2) amended by No. 52/1998 s. 84(1). (2) The person may apply to the Authority for permission to hold an estate agent's licence as an employee or to be employed as an agent's representative. S. 31B(2A) inserted by No. 8/2003 s. 50. (2A) An application under this section must— (a) be in the form approved by the Authority; and (b) contain the information required by the Authority; and (c) be accompanied by the documents required by the Authority; and (d) be accompanied by the prescribed fee (if any). S. 31B(2B) inserted by No. 8/2003 s. 50. (2B) In considering an application under this section, the Authority may— (a) conduct any inquiries it thinks fit; (b) require the applicant to provide any further information that the Authority thinks fit in the manner required by the Authority; (c) seek advice and information on the application from any other person or body as it thinks fit.
(3) The register must contain details of the following in relation to each licensed estate agent or estate agency business— (a) licence number issued by the Authority; S. 33(3)(b) amended by No. 63/2010 s. 39. (b) name and registered address; (c) date of grant, surrender, cancellation or suspension of the licence; (d) licence conditions; (e) any Tribunal or court orders concerning the estate agent or agent's representative that affects the licence or status of the agent's representative of which the Registrar has notice; (f) any claims allowed by the Fund (or any like fund established under a previous enactment) in relation to a licensed estate agent or agent's representative of which the Registrar has notice; s. 33 (g) address and telephone number of the principal office of the licensed estate agent; (h) if the licensed estate agent has branch offices— (i) the address of each branch office; (ii) the name of each branch manager; (iii) the date of appointment of each branch manager; (iv) the date of cessation of appointment of each branch manager;
S. 35(2) amended by Nos 9925 s. 5(a), 86/1994 s. 47(v)(ii), 52/1998 s. 89(1)(2), 63/2010 s. 40(3). (2) Any change in the situation of a registered address shall be promptly notified in writing to the Registrar by the agent or agent's representative concerned, and the Registrar shall alter the register accordingly. S. 35(3) amended by Nos 9925 s. 5(a), 86/1994 s. 47(v)(ii), 52/1998 s. 89(2). (3) An estate agent shall within fourteen days of the establishment of a branch office advise the Registrar in writing of the address of that branch office. S. 35(3A) inserted by No. 29/1989 s. 11(1). (3A) Subject to subsection (3B), every licensed estate agent must have a principal office in . S. 35(3B) inserted by No. 29/1989 s. 11(1). (3B) A licensed estate agent who is also licensed or otherwise authorised under the laws of another State to carry on the business of an estate agent in that State who operates an estate agency business in that State and the main or only estate agency office of that business is located within that State may have his or her principal office outside Victoria if it is within 48 kilometres of Victoria. S. 35(4) amended by Nos 9925 s. 5(a), 86/1994 s. 47(v)(ii), 52/1998 s. 89(1)(2). (4) Any change in the situation of the principal office or a branch office of an estate agent shall be promptly notified in writing to the Registrar by the estate agent concerned and the Registrar shall alter the register accordingly. s. 35 (5) For the purposes of this Act where a licensed estate agent carries on business at only one place that place shall be recorded as his principal office.
(a) each party to the agreement is jointly and severally liable for any defalcation by the estate agent; and (b) each party to the agreement is jointly and severally liable for any liability incurred by the estate agent as a result of negligence by the estate agent or by an employee or servant of the estate agent in the performance of the duties of an estate agent; and s. 43 (c) each party to the agreement is jointly and severally liable for any costs or fines arising out of any proceedings instituted in respect of that defalcation or negligence. (4) If an estate agent contravenes this section each party to the franchising agreement is guilty of an offence. (5) In this section— S. 43(5) def. of franchising agreement amended by No. 86/1994 s. 47(y)(ii). franchising agreement means an agreement whereby an estate agent is authorized to carry on business under any name in consideration of any other person entitled to carry on business under that name receiving any consideration whether by way of a share in the profits of the estate agent's business or otherwise; defalcation has the same meaning as in Part VII. 44 Persons not to be employed by agents s. 44 S. 44(1) amended by No. 86/1994 s. 47(z)(i). (1) An estate agent shall not employ in any capacity in connexion with his business any person— (a) who is for the time being disqualified under this Act from holding a licence; or
S. 44(1)(b) amended by No. 86/1994 s. 47(z)(ii). (b) whose application for a licence has been refused by the Authority, unless such an application has been subsequently granted; or S. 44(1)(c) amended by Nos 86/1994 s. 47(z)(iii), 17/2004 s. 7(2). (c) in relation to whom any claim has been allowed against the Fund under Part VII, unless the Tribunal permits the employment; or S. 44(1)(d) amended by No. 9549 s. 2(1)(Sch. item 57). (d) who because of his conduct or reputation is not a fit and proper person to be employed in an estate agency. S. 44(2) amended by No. 86/1994 s. 47(z)(iv)(v). (2) A person who under subsection (1) is not permitted to be employed by an estate agent in any capacity in connexion with his business shall not participate or be in any way concerned in the business of an estate agent. S. 45 amended by Nos 10028 s. 27, 29/1989 s. 13(a)(b), 38/1993 s. 6(d), repealed by No. 86/1994 s. 47(za), new s. 45 inserted by No. 41/2003 s. 33, repealed by No. 63/2010 s. 45. * * * * * Ss 45A, 45B inserted by No. 41/2003 s. 33, repealed by No. 63/2010 s. 45. * * * * *
(ii) the name of the person providing the rebate; and (iii) the amount of the rebate that will be attributable to the engagement or appointment, or if that amount is not known at the time the statement is made, an estimate (in dollars) of the amount; and (c) a statement that the agent is not entitled to retain any rebate and must not charge the client an amount for any expenses that is more than the cost of those expenses; and (d) any other statements or details required by the regulations. S. 49A(5) inserted by No. 41/2003 s. 9(2). (5) Section 48C also applies for the purposes of subsection (4)(b)(iii). 50 Commission S. 50(1) amended by Nos 10028 s. 30(a)(i), 41/2003 s. 9(3)(a). s. 50 (1) An estate agent is not entitled to sue for or recover or retain any commission or money in respect of any outgoings for or in respect of any transaction unless— S. 50(1)(a) amended by Nos 86/1994 s. 23(1), 41/2003 s. 9(3)(b). (a) at all material times in relation to the transaction he or she is the holder of an estate agent's licence; and S. 50(1)(b) amended by No. 10028 s. 30(a)(ii), substituted by No. 86/1994 s. 23(1), amended by No. 41/2003 s. 9(3)(c). (b) the agent has complied with section 49A(1) with respect to the engagement or appointment to undertake the transaction and is not in breach of section 49A(2) with respect to the engagement or appointment; and
S. 58 def. of building society inserted by No. 29/1989 s. 14(b), repealed by No. 11/2001 s. 3(Sch. item 24.2(a)). * * * * * commencing date means the day fixed as the commencing date by proclamation of the Governor in Council published in the Government Gazette; s. 58 S. 58 def. of estate agent amended by Nos 10168 s. 3, 55/1987 s. 57(3)(Sch. 5 item 27), 45/1994 s. 42(Sch. item 4.3). estate agent includes an executor, administrator or trustee (other than a trustee company within the meaning of the Trustee Companies Act 1984) of the estate of a deceased estate agent who is carrying on the business of the agent pursuant to this Act; S. 58 def. of financial institution inserted by No. 29/1989 s. 14(c), amended by Nos 104/1995 s. 6(Sch. 1 item 7), 11/2001 s. 3(Sch. item 24.2(b)), 1/2010 s. 12. financial institution means an authorised institution in respect of which there is in force a declaration under section 4(5) of the Trustee Act 1958, as in force immediately before the commencement of section 4 of the Trustee and Trustee Companies (Amendment) Act 1995, or an authorised financial institution; S. 58 def. of moneys amended by No. 11/2001 s. 3(Sch. item 24.2(c)). moneys includes an instrument for the payment of money in any case where the instrument may be paid into an authorised deposit-taking institution; taking
S. 59(1)(a)(i) amended by No. 11/2001 s. 3(Sch. item 24.3). (i) if facilities of an authorised institution are available within sixteen kilometres of the place of business of the agent—before the end of the next business day after the day on which the money is received; (ii) in any other case—before the end of the third business day after the day on which the money is received; (b) shall retain that money in that trust account until paid— S. 59(1)(b)(i) amended by Nos 29/1989 s. 15(a)(ii), 35/1996 s. 453(Sch. 1 item 28.3). (i) to the persons entitled thereto (including, where the ownership of any chattels stock or book debts has been agreed to be transferred as part of the transaction, any person other than the parties to the transaction who has any right as mortgagee or lienee in any of such chattels stock or book debts) or such persons' legal practitioners or at such persons' direction; s. 59 S. 59(1)(b)(ii) repealed by No. 29/1989 s. 15(a)(ii). * * * * * S. 59(1)(c) amended by Nos 9500 s. 12(i)(ii), 86/1994 ss 32(1), 47(zl), 52/1998 s. 95. (c) shall not withdraw or cause any payment to be made from any money paid into a trust account under this subsection unless the withdrawal or payment is made in the form of a trust account cheque or an electronic funds transfer or in such other form as the Director directs in a particular case. 120 penalty units. taking
S. 59(6) amended by Nos 29/1989 s. 15(e), 86/1994 s. 47(zm) (i)–(iii). (6) It shall not be necessary for any agent's representative to pay money received by him into a financial institution to a trust account pursuant to this section; but every agent's representative shall pay forthwith to the licensed estate agent for whom he is acting as an agent's representative or to a trust account specified by the agent all money received from or on behalf of any person by the agent's representative in respect of any transaction in his capacity of agent's representative for the licensed estate agent. S. 59(7) amended by No. 1/2010 s. 13(3). (7) Every estate agent shall— s. 59 S. 59(7)(a) amended by Nos 10028 s. 33(c), 29/1989 s. 15(f), 86/1994 s. 47(zl), 52/1998 s. 95. (a) within 14 days of the opening of any trust account under this section, notify the Director in writing of the existence, name and number of that account and the address of the branch of the financial institution at which that account is held; S. 59(7)(b) amended by Nos 86/1994 s. 47(zl), 52/1998 s. 95. (b) within 14 days of the closure of any trust account under this section, notify the Director in writing of that closure. 60 penalty units. S. 59(8) inserted by No. 41/2003 s. 37. (8) This section does not apply in relation to— (a) a cheque received by an estate agent from a tenant for the amount of bond made payable to the Residential Tenancies Bond Authority established under the Residential Tenancies Act 1997; S. 59(8)(b) amended by No. 17/2004 s. 8(1)(a). (b) a cheque received by an estate agent from a person made payable to another person in prescribed circumstances;
S. 60 amended by No. 9500 s. 13, substituted by No. 29/1989 s. 16. 60 Secretary's power to enter into arrangements with financial institutions s. 60 S. 60(1) amended by Nos 86/1994 s. 30(a)(b), 52/1998 s. 96, 1/2010 s. 14(1). (1) The Secretary may enter into an arrangement with a financial institution for the keeping of estate agents' trust accounts. S. 60(2) amended by Nos 86/1994 s. 30(a), 52/1998 s. 96. (2) An arrangement entered into by the Secretary under subsection (1), may provide for all or any of the following matters: S. 60(2)(a) amended by Nos 86/1994 s. 30(a), 52/1998 s. 96. (a) The payment of interest on the whole or any part of deposits in estate agents' trust accounts to the Secretary; S. 60(2)(b) amended by Nos 86/1994 s. 30(a), 52/1998 s. 96. (b) The manner by which the Secretary is informed of amounts held in estate agents' trust accounts; (c) The auditing of balances in estate agents' trust accounts; (d) Any other relevant matter. S. 60(3) amended by Nos 86/1994 s. 30(a), 52/1998 s. 96, 17/2004 s. 7(2). (3) Any interest received by the Secretary under an arrangement entered into under subsection (1) must be paid into the Fund. (4) An estate agent must not maintain a trust account at a financial institution which is not an authorised financial institution.
S. 69(1A) inserted by No. 10028 s. 42(b), amended by Nos 86/1994 s. 47(zu), 52/1998 s. 99(1), substituted by No. 41/2003 s. 45. (1A) The Director may require, by notice in writing, any licensed estate agent or any executor, trustee or administrator of an estate agent to make and deliver to the Director a statutory declaration as to whether the estate agent held any money for, or on behalf of, another person during a period specified by the Director in the notice. S. 69(1B) inserted by No. 41/2003 s. 45. (1B) If the Director imposes a requirement on a person under subsection (1A), the person must comply with the requirement within the time specified by the Director in the notice imposing the requirement. 25 penalty units. S. 69(2) amended by No. 10028 s. 42(c). (2) Where the accounts of trust money are kept by a partnership of estate agents an audit of those accounts under section 64, 64A or 64B and the certificates and report of the auditor thereon shall operate as regards those accounts as an audit certificate and report in relation to each estate agent who is a member of that partnership. Pt 6 Div. 2 (Heading) inserted by No. 103/2004 s. 40. Division 2—Monitoring of estate agency business S. 70 amended by Nos 9902 s. 2(1)(Sch. item 82), 9925 s. 5(a)(b), 10028 s. 43, 29/1989 ss 11(2), 19(3), 86/1994 ss 35, 47(zu), 52/1998 s. 99(1), 41/2003 s. 46, substituted by No. 103/2004 s. 40. 70 Definitions s. 70 In this Division— estate agent includes licensed estate agent and any person— (a) whose estate agent's licence has expired or has been cancelled; or (b) who is a director or officer of a corporation which is a licensed estate agent; or
(e) to any client of the estate agent, if the information is a report of the result of the carrying out of any function of an inspector under this Division if and only to the extent that it directly concerns that client; or (f) with the written authority of the Director; or (g) with the written authority of the person to whom the information relates. s. 70Y _______________ Pt 7 (Heading) amended by No. 17/2004 s. 7(7). 71 Definitions s. 71 In this Part unless inconsistent with the context or subject-matter— S. 71 def. of bank amended by No. 9902 s. 2(1)(Sch. item 80), repealed by No. 38/1993 s. 5(3). * * * * * S. 71 def. of court repealed by No. 19/1989 s. 16(Sch. item 20.2). * * * * * defalcation means any theft embezzlement failure to account fraudulent misappropriation or other act punishable by imprisonment of or in relation to any money or other property;
(iii) the provision of finance or credit for the acquisition of any right to reside on land; S. 76(3)(a)(iv) substituted by No. 69/2006 s. 224(Sch. 3 item 5.4). (iv) owners corporations; (v) retirement villages; (vi) residential tenancy rights and any other rights to reside on land; (vii) other consumer protection matters relating to interests in land; S. 76(3)(b) substituted by No. 17/2004 s. 5(1). (b) programs that promote the ownership of real estate; S. 76(3)(c) substituted by No. 17/2004 s. 5(1). (c) the training of estate agents and agents' representatives; S. 76(3)(d) substituted by No. 17/2004 s. 5(1). (d) dispute resolution and advocacy services in relation to disputes involving— (i) the sale, purchase, lease or transfer of interests in real estate or businesses; (ii) the provision of finance or credit for the purpose of sale, purchase or lease of real estate or businesses; (iii) a resident, or proposed or former resident, of a retirement village regarding his or her residence right in that retirement village; S. 76(3)(d)(iv) substituted by No. 69/2006 s. 224(Sch. 3 item 5.5). (iv) an owners corporation or a member of an owners corporation or an occupier of a lot arising in relation to the operation of an owners corporation; s. 76
made under or for the purposes of this Act knowingly makes any statement which is not correct or furnishes any particulars which are not correct or omits to furnish any particulars by or under this Act required to be furnished shall be guilty of an offence. 100 penalty units. S. 93A inserted by No. 103/2004 s. 41, amended by Nos 17/2007 s. 36(Sch. item 4), 2/2008 s. 60(Sch. item 4.2), 72/2010 s. 48(Sch. item 9), substituted by No. 21/2012 s. 239(Sch. 6 item 16.5). 93A Application of Australian Consumer Law and Fair Trading Act 2012 (1) Sections 195 and 196 and Part 8.2 (except sections 209 and 213) of the Australian Consumer Law and Fair Trading Act 2012 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act. (2) For the purposes of subsection (1), section 210 of the Australian Consumer Law and Fair Trading Act 2012 applies as if a reference in that section to Part 3.1 or Part 6.3 of the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act. (3) For the purposes of subsection (1)— (a) section 212 of the Australian Consumer Law and Fair Trading Act 2012 applies as if a reference to prescribed proceedings were a reference to— (i) proceedings for an offence against a provision of this Act (except Division 2 of Part VI and section 93); or (ii) proceedings on an application for an injunction under section 201, 202, 203, 205 or 206 of the Australian Consumer Law and Fair Trading Act 2012 (as applied by subsection (1)) against a person alleged to have
of the document was not done with the intention of defeating the purposes of this Act. S. 99 amended by No. 8/2003 s. 59(3) (ILA s. 39B(1)). 99 Regulations s. 98A (1) The Governor in Council may make regulations for or with respect to— S. 99(1)(a) amended by No. 52/1998 s. 112(a). (a) prescribing the form and manner of keeping the register and any other forms for use under this Act (and all such forms or forms to the like effect shall be sufficient in law); S. 99(1)(aa) inserted by No. 10028 s. 54(a). (aa) prescribing which, if any, particulars required to be given in any prescribed form are to be verified by statutory declaration or otherwise; S. 99(1)(b) repealed by No. 52/1998 s. 112(b), new s. 99(1)(b) inserted by No. 41/2003 s. 49(a) . (b) requiring estate agents to give consumers of their services information in relation to those services in a form specified by the regulations or approved by the Director; (c) exempting any class of persons from the operation of this Act and prescribing the extent of such exemptions; S. 99(1)(d) amended by Nos 86/1994 s. 44(a), 8/2003 s. 59(1). (d) prescribing the books accounts documents and records to be kept by licensed estate agents and agents' representatives and the manner of keeping them and the period for which they must be kept; S. 99(1)(e) amended by No. 41/2003 s. 49(b). (e) prescribing the duties of persons engaged to audit accounts pursuant to Part VI of this Act including the scope of and the mode of making the audit; S. 99(1)(ea) inserted by No. 86/1994 s. 44(b), amended by No. 17/2004 s. 10(2). (ea) the responsibilities of the officer in effective control of the estate agency business of a licensed estate agent that is a corporation with respect to the supervision and control of
(v) for the issue of other documents under this Act; (vi) for any other procedures required by this Act, other than procedures relating to the Tribunal; S. 99(1)(ga) inserted by No. 10028 s. 54(d), amended by No. 86/1994 s. 47(zy). (ga) prescribing the circumstances in which the Authority may give reductions in or refunds of fees and the amount of those reductions or refunds; S. 99(1)(gb) inserted by No. 10028 s. 54(d), amended by No. 86/1994 s. 44(d). (gb) prescribing courses of education for agents' representatives; S. 99(1)(gc) inserted by No. 86/1994 s. 44(e). (gc) regulating advertising by, and advertisements of, estate agents or agents' representatives and regulating the use by an estate agent in advertisements, or in connection with the agent's business as an estate agent, of a name, title or description which is used as a result of a franchising agreement within the meaning of section 43; S. 99(1)(gd) inserted by No. 86/1994 s. 44(e). (gd) regulating the giving of deposits to, and the taking of deposits by, agents and agents' representatives and the amounts or rates of such deposits, and regulating or prescribing the form of receipts for deposits; S. 99(1)(ge) inserted by No. 86/1994 s. 44(e). s. 99 (ge) prescribing standard forms of contracts to give effect to agreements negotiated by agents or agents' representatives, and the use of those forms, and the permissible variations in those forms, and prohibiting or restricting the use of other forms to give effect to such contracts;
S. 99(1)(gf) inserted by No. 86/1994 s. 44(e), amended by No. 41/2003 s. 49(c). (gf) prescribing courses of instruction and examinations and requirements establishing competency; S. 99(1)(gg) inserted by No. 86/1994 s. 44(e). (gg) prescribing rules of professional conduct for agents and agents' representatives; (h) generally, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or expedient to be prescribed for carrying out or giving effect to this Act. S. 99(2) inserted by No. 8/2003 s. 59(3). (2) The regulations under this Act may prescribe fees that differ according to differences in circumstances. S. 99(3) inserted by No. 63/2010 s. 48(2). (3) A power conferred by this Act to make regulations may be exercised— (a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case; and (b) so as to make, as respects the cases in relation to which the power is exercised— (i) the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or different provisions for the same case or class of case for different purposes; or s. 99