New South Wales: Conveyancers Licensing Act 2003 (NSW)

Conveyancers Licensing Act 2003 No 3 An Act to provide for the licensing and regulation of conveyancers, to repeal the Conveyancers Licensing Act 1995; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Conveyancers Licensing Act 2003. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2). (2) Schedule 2.2 and 2.5 commence on the commencement of Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002. 3 Definitions In this Act— authorised officer has the meaning given in Part 10 (Enforcement). business day means a day that is not— (a) a Saturday or Sunday, or (b) a public holiday or bank holiday throughout the State. Compensation Fund or Fund means the Property Services Compensation Fund established and maintained under the Property and Stock Agents Act 2002. conveyancer means a person who carries out conveyancing work. conveyancing business means any business in the course of which conveyancing work is carried out for fee or reward, whether or not the carrying out of conveyancing work is the sole or dominant purpose of the business. conveyancing work has the meaning given to it by section 4. Corporations Act means the Corporations Act 2001 of the Commonwealth. costs includes fees, charges, disbursements, expenses and remuneration. Department means the Department of Customer Service. disqualified person has the meaning given to it by section 10. employee includes any person employed whether on salary, wages, bonus, fees, allowance or other remuneration and includes a director or member of the governing body of a corporation. exercise a function includes perform a duty. firm of licensees includes any licensees who share remuneration as licensees, whether or not on the same basis for each of them. function includes a power, authority or duty. licence means a licence under this Act. licensee means the holder of a licence under this Act. licensee's records has the meaning given in Part 6 (Records). money includes an instrument for the payment of money in any case where the instrument may be paid into a bank or other deposit-taking institution. money received for or on behalf of any person includes money held for or on behalf of any person, whether originally received for or on behalf of the person or not. public holiday means a day appointed under the Public Holidays Act 2010 or another Act as a public holiday. records includes books, accounts and other documents. Secretary means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department. Statutory Interest Account means the Property Services Statutory Interest Account referred to in Part 11 of the Property and Stock Agents Act 2002. Tribunal means the Civil and Administrative Tribunal. trust account means a trust account required to be kept under this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. 4 Conveyancing work (1) For the purposes of this Act, conveyancing work is legal work carried out in connection with any transaction that creates, varies, transfers or extinguishes a legal or equitable interest in any real or personal property, such as (for example) any of the following transactions— (a) a sale or lease of land, (b) the sale of a business (including the sale of goodwill and stock-in-trade), whether or not a sale or lease of land or any other transaction involving land is involved, (c) the grant of a mortgage or other charge. (2) Without limiting subsection (1), conveyancing work includes— (a) legal work involved in preparing any document (such as an agreement, conveyance, transfer, lease or mortgage) that is necessary to give effect to any such transaction, and (b) legal work (such as the giving of advice or the preparation, perusal, exchange or registration of documents) that is consequential or ancillary to any such transaction, and (c) any other legal work that is prescribed by the regulations as constituting conveyancing work for the purposes of this Act. (3) However, conveyancing work does not include the carrying out of any work for the purpose of— (a) a mortgage on non-residential property where the amount secured by the mortgage exceeds 7 million dollars (with non-residential property being any property that is not residential property for the purposes of Division 8 of Part 4 of the Conveyancing Act 1919), or (b) commencing or maintaining legal proceedings, or (c) establishing a corporation or varying the memorandum or articles of association of a corporation, or (d) creating, varying or extinguishing a trust, or (e) preparing a testamentary instrument, or (f) giving investment or financial advice, or (g) investing money otherwise than as provided for by Division 2 of Part 5, and does not include any work that is prescribed by the regulations as not constituting conveyancing work for the purposes of this Act. (4) In this section— legal work means work that, if done for fee or reward by a person who is not an Australian legal practitioner, would give rise to an offence under Part 2.1 of the Legal Profession Uniform Law (NSW). 5 Notes Notes included in this Act do not form part of this Act. Part 2 Licences Division 1 Requirement for licence 6 Persons conducting conveyancing business required to be licensed (1) A person must not conduct a conveyancing business for fee or reward unless the person is the holder of a licence. Maximum penalty—100 penalty units. (2) This section does not apply to the conduct of a conveyancing business by a person— (a) who is an Australian legal practitioner, or (b) who is an incorporated legal practice or solicitor corporation (if the conveyancing business is carried on on its behalf by an Australian legal practitioner). 7 Effect of licence (1) A licensee is not guilty of an offence under Part 2.1 of the Legal Profession Uniform Law (NSW) in respect of conveyancing work that the licensee carries out in accordance with this Act, the regulations and the conditions of the licence. (2) This section does not permit a licensee to do anything, or to allow anything to be done, that is calculated to imply that the licensee is qualified to act as a solicitor. Division 2 Eligibility, qualifications and disqualification 8 Eligibility for licence (1) A natural person is eligible to hold a licence only if the Secretary is satisfied that the person— (a) is at least 18 years of age, and (b) is a fit and proper person to hold a licence, and (c) each person with whom the person is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and (d) has the qualifications required for the issue of the licence, and (e) is not a disqualified person, and (f) has paid such part of any contribution or levy payable under section 12 as is due and payable on the granting of the licence. (2) A corporation is eligible to hold a corporation licence only if the Secretary is satisfied that— (a) the corporation is a fit and proper person to hold a licence, and (b) each director of the corporation is a fit and proper person to hold a licence, and (c) no director or executive officer (within the meaning of the Corporations Act) of the corporation is a disqualified person, and (c1) the corporation is not a disqualified person, and (d) at least one of the directors of the corporation holds a licence that a natural person is required to hold to carry on the business that the corporation carries on or proposes to carry on, and (e) the corporation has paid such part of any contribution or levy payable under section 12 as is due and payable on the granting of the licence. 9 Qualifications for licence (1) The qualifications required for the issue of a licence are such qualifications as the Minister may approve from time to time by order published on the NSW legislation website. (2) Without limiting the Minister's power to approve qualifications, the Minister may approve qualifications by reference to any one or more of the following— (a) the completion of a course of study, (b) the completion of a period of training in a particular activity, (c) the attainment of a standard of competency in a particular activity, (d) satisfaction of professional development requirements. (3) Qualifications may be approved for a limited range of activities specified in the approval, so as to enable a person who has those qualifications to be granted a licence subject to conditions that limit the person to exercising the functions of a licensee in relation to that limited range of activities only. (4) Qualifications may be approved by reference to qualifications obtained before a specific day or during a specified period. (5) A person does not have the qualifications required for the renewal or restoration of a licence if the person has failed to comply with any condition of the licence that required the holder to undertake professional development, continuing education or a course of study, unless the Secretary otherwise determines in a particular case. 10 Disqualified persons (1) A person is a disqualified person for the purposes of this Act if the person— (a) has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Secretary has determined under subsection (3) that the offence should be ignored, or (b)–(d) (Repealed) (e) is a mentally incapacitated person, or (f) is disqualified from holding a licence or other authority under a corresponding law or is the holder of such a licence or authority that is suspended, or (g) is the holder of a licence, permit or other authority that is suspended under legislation administered by the Minister or is disqualified from holding a licence, permit or other authority under legislation administered by the Minister, or (h) is in partnership with a person who is a disqualified person, or (i) is for the time being declared to be a disqualified person under Part 9 (Complaints and disciplinary action), or (j) is a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed, or (k) has failed to pay a contribution or levy payable by the person under section 89 and the failure continues, or (l) has failed to pay an amount due as a debt to the Crown by way of recovery of an amount paid out of the Compensation Fund and the failure continues, or (m) has failed to pay any monetary penalty payable by the person under Part 9 (Complaints and disciplinary action) or has failed to comply with any direction given by the Secretary under that Part, and the failure continues, or (n) has failed to comply with the requirements of section 75 to have an audit of the records and documents relating to any trust money carried out within the required time, unless the Secretary determines in the circumstances that failure should not disqualify the person, or (o) has been removed (otherwise than at his or her own request) from the roll of lawyers kept by the Supreme Court or from a corresponding roll of lawyers kept by a superior court of another State or Territory, or (p) is disqualified from being employed in a law practice by virtue of an order made under Division 1 of Part 3.9 of the Legal Profession Uniform Law (NSW), or (p1) is an Australian legal practitioner, incorporated legal practice or solicitor corporation, or (q) is a disqualified person under the Property and Stock Agents Act 2002, or (q1) is the holder of a licence or certificate of registration under the Property and Stock Agents Act 2002, or (r) is in breach of any provision of this Act or the regulations that is prescribed by the regulations as a disqualifying breach. (2) A person is also a disqualified person for the purposes of this Act (except for the purposes of section 29) if the person— (a) is an undischarged bankrupt, or (b) at any time in the last 3 years was an undischarged bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit, or (c) is, or was at any time in the last 3 years, concerned in the management of, or a director of, a Chapter 5 body corporate except in a case of the voluntary winding up of the body corporate, or (d) is a person— (i) who was, at any time in the last 3 years, concerned in the management of, or a director of, a body corporate that, within 12 months of the person ceasing to be such a person or director, became a Chapter 5 body corporate except in the case of a voluntary winding up of the body corporate, and (ii) who failed (while concerned in the management of, or a director of, that body corporate) to take all reasonable steps to avoid the body corporate becoming a Chapter 5 body corporate. (3) The Secretary may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence. (3A) The Secretary may determine that the factors listed in subsection (1) (g) or (j) should be ignored for the purposes of this section if, on the basis of information provided to the Secretary, the Secretary considers it appropriate to make that determination. (3B) The Secretary may exempt a person from the operation of subsection (2) (a), (b) or (c) by— (a) certifying, in the case of exemption from subsection (2) (a), that the Secretary is satisfied that the person took all reasonable steps to avoid the bankruptcy concerned, or (b) certifying, in the case of exemption from subsection (2) (b), that the Secretary is satisfied that the person took all reasonable steps to avoid the bankruptcy or other financial difficulties concerned, or (c) certifying, in the case of exemption from subsection (2) (c), that the Secretary is satisfied that the person took all reasonable steps (while concerned in the management of, or a director of, the body corporate) to avoid the body corporate becoming a Chapter 5 body corporate. (3C) Subsection (2) (d) does not operate to make a person a disqualified person unless the Secretary has served a notice on the person giving the person the opportunity to make oral or written submissions to the Secretary within a period (being not less than 14 days) specified in the notice with respect to the grounds on which the person believes he or she took all reasonable steps to avoid the body corporate becoming a Chapter 5 body corporate and the Secretary is satisfied that the person failed to take all such steps. (3D) In determining for the purposes of subsection (3B) or (3C) what reasonable steps could have been taken by a person to avoid a particular outcome, the Secretary is to have regard to the steps that could have been taken by the person from the time that the financial difficulties that gave rise to the outcome first arose. (4) In this section— Chapter 5 body corporate has the same meaning as in the Corporations Act. corresponding law means a law of another Australian jurisdiction that is declared by the Minister from time to time by order published on the NSW legislation website to be a law that corresponds to this Act. Division 3 Application and issue procedure 11 Application to licences of Licensing and Registration (Uniform Procedures) Act 2002 (1) The Secretary may grant licences for the purposes of this Act. (2) Part 2 (other than section 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of a licence, subject to the modifications and limitations prescribed by or under this Act. (3) For the purpose of applying Part 2 of the applied Act to a licence— (a) the Secretary is taken to be the licensing authority, and (b) the licence may be amended under that Act, and (c) the reference to 2 weeks in section 9 (1) (a) of that Act is to be read as a reference to 4 weeks, and (d) (Repealed) (e) the reference to 28 days in section 17 (1) of that Act (as to the period within which an application must be determined) is to be read as a reference to 8 weeks, and (f) section 21 (1) and (4) of that Act do not have effect, and (g) the reference to 14 days in section 24 (1) of that Act (as to the period within which changed particulars must be notified) is to be read as a reference to 7 days, and (h) (Repealed) (i) a licence is not transferable. (4) A licence is taken to be a fixed-term licence for the purposes of Part 2 of the applied Act. (5) Subject to this section, the regulations may make provision for or with respect to such matters concerning a licence as are relevant to the operation of Part 2 of the applied Act. 12 Application fees and Compensation Fund contributions (1) An applicant for a licence must make provision for the payment of an application fee of an amount prescribed by the regulations. (2) An applicant for a licence must also make provision for the payment of the contribution to the Compensation Fund required under section 89 in relation to the application. 13 Grounds for refusal of licence (1) A licence must not be granted to an applicant unless the applicant is eligible to be granted a licence (as provided by section 8). (2) The Secretary may refuse an application on any of the grounds (listed in section 132) on which the Secretary may take disciplinary action. 14 Conditions—general A licence may be granted subject to conditions, including (but not limited to) conditions of the following kind— (a) a condition prohibiting the licensee from carrying out conveyancing work otherwise than as an employee of a licensee whose licence does not contain such a condition, (b) a condition prohibiting the licensee from carrying out conveyancing work in relation to specified kinds of transaction, (c) a condition prohibiting the licensee from carrying out conveyancing work except in relation to specified kinds of transaction, (d) a condition requiring the licensee to undertake or complete a specified course of studies within a specified period of time, (e) a condition requiring a licensee to undertake by way of professional development specified further education or training during the term of the licence. 15 Special condition requiring professional indemnity insurance (1) The regulations may make provision for or with respect to requiring the holder of a licence to be insured under a policy of professional indemnity insurance in force with respect to the licensee or his or her employer. It is a condition of a licence that the holder of the licence be insured as required by any such regulations. (2) In particular, the regulations may require that the policy of insurance be a policy, or a policy of a kind, that is approved by the Minister for the time being by order published on the NSW legislation website. (3) An order may provide that a policy is an approved policy if the policy complies with either or both of the following— (a) the policy complies with the conditions set out in the order, (b) the policy is described in the order by reference to the insurer and the number of the policy or is identified in the order by other specified particulars. 16 Issue of licence Licences are issued by the Secretary and are to be in such form and specify such information as the Secretary determines. 17 Duration of licence (1) An application for a licence or for renewal of a licence is to nominate one of the following terms of duration for the licence (the nominated term)— (a) 1 year, (b) 3 years, (c) 5 years. (2) The Secretary may grant or renew a licence for a shorter term than the nominated term if satisfied that it is in the public interest to do so. (3) If an application for renewal of a licence has been made but the application is not finally determined by the Secretary before the expiry of the licence, the licence (if not suspended or sooner cancelled) continues in force until the application is finally determined. (4) If a licence is granted or renewed for a shorter term than the nominated term, the Secretary is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted. (5) The suspension of a licence does not affect the term of the licence. (6) This section does not affect the term of any licence granted under this Act and in force immediately before the substitution of this section by the Fair Trading Legislation Amendment (Reform) Act 2018. 18 Time period for restoration of licences (1) An application for the restoration of a licence must be made— (a) within 3 months of the expiry of the licence, or (b) within the further period determined by the Secretary on the application of the person seeking the restoration of the licence. (2) Without limiting subsection (1) (b), the Secretary may extend the period within which an application for the restoration of a licence may be made if the Secretary is satisfied that— (a) in a case where the applicant failed to apply for renewal before the licence expired—the failure to apply for renewal of the licence before it expired was due to inadvertence, or (b) it is just and equitable to restore the licence. (3) A licence that has been surrendered or cancelled must not be restored. (4) An application for the restoration of a licence must— (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the licence. (5) A licence restored at any time is taken to have been restored from the day on which the licence expired. (6) Subject to this section, this Act applies to an application for the restoration of a licence in the same way as it applies to an application for a licence. Part 3 General conduct of licensees Division 1 Place and name of business 19 Business names (1), (2) (Repealed) (3) A licensee must not enter into any arrangement under which some other person, whether or not a licensee, is authorised by the licensee to conduct a conveyancing business under the same business name, or under a substantially similar business name, as that under which the licensee conducts a conveyancing business. Maximum penalty—50 penalty units. (4) Subsection (3) is intended to operate as referred to in sections 12 (2) (e), 19 (5) and 20 (3) of the Business Names Registration Act 2011 of the Commonwealth. Note— Section 12 (2) (e) of the Business Names Registration Act 2011 of the Commonwealth (the Commonwealth Act) provides that the business names legislation referred to in that section is not intended to exclude or limit the concurrent operation of a law of a State that imposes obligations on an entity or class of entities that are in addition to obligations imposed under that Act. Sections 19 (5) and 20 (3) of the Commonwealth Act also provide that an entity does not commit an offence under those sections concerning the inclusion or display of registered business names in written communications and at places of business if the inclusion, use or display of a business name in such a communication or at such a place would be contrary to a law of a State. Division 2 Business practices and supervision 20 Each place of business to be in charge of licensee (1) A licensee who conducts a conveyancing business under a licence at more than one place of business must employ at each of those places of business (except the place at which the licensee is personally in charge) as the person in charge of business at that place a person who is the holder of a licence that an individual is required to hold to carry on a conveyancing business. (2) A corporation that conducts a conveyancing business under a licence must employ as the person in charge at each place of business at which the corporation carries on business under the licence a person who is the holder of a licence that an individual is required to hold to carry on a conveyancing business. (3) A licensee must not employ a person to be the person in charge of business at a place of business of the licensee if the person is also employed to be the person in charge of business at another place of business of the licensee or at a place of business of another licensee. (4) A person employed as the person in charge of business at a place of business of a licensee must not exercise functions or provide services on behalf of 2 or more licensees at that place (whether corporations or individuals) unless those licensees are in partnership. (5) The Secretary may grant a person an exemption from a provision of this section. The exemption may be granted unconditionally or subject to conditions. The Secretary may at any time by notice in writing to a person granted an exemption revoke the exemption or vary the conditions of the exemption. (6) The regulations may specify the matters to be taken into account by the Secretary in considering whether to grant a person an exemption from a provision of this section. Maximum penalty— (a) 200 penalty units in the case of a corporation, or (b) 100 penalty units in any other case. 21 Duty of licensee and person in charge to properly supervise conveyancing business (1) A licensee must properly supervise the conveyancing business carried on by the licensee. (2) The requirement to properly supervise the conduct of a conveyancing business includes the following requirements— (a) a requirement to properly supervise employees engaged in the business, (b) a requirement to establish procedures designed to ensure that the provisions of this Act and any other laws relevant to the conduct of that business are complied with, (c) a requirement to monitor the conduct of business in a manner that will ensure as far as practicable that those procedures are complied with. (3) The Secretary may from time to time issue and notify to licensees guidelines as to what constitutes the proper supervision of the business of a licensee. A failure to comply with the requirements of any such guidelines in connection with the supervision of a business constitutes a failure to properly supervise the business. Maximum penalty—200 penalty units in the case of a corporation or 100 penalty units in any other case. 22 Rules of conduct for licensee's business (1) The regulations may prescribe rules of conduct to be observed in the course of the conduct of conveyancing businesses or the exercise of functions under licences. Note— Part 9 (Complaints and disciplinary action) provides that a contravention of a provision of the regulations is grounds for taking disciplinary action against a person. (2) Without limiting subsection (1), the regulations may adopt, with or without modification, the provisions of any rules made by the Law Society with respect to the conduct of solicitors. (3) Without limiting subsection (1), the regulations may make provision for or with respect to matters to be disclosed to a person for whom a licensee carries out, or is retained to carry out, conveyancing work, including (but not limited to)— (a) any conflict of interest that might arise from the carrying out of the work, and (b) any beneficial interest in property that a licensee or employee of a licensee may obtain or be concerned in obtaining in carrying out conveyancing work in relation to the sale of the property. 23 Undertakings by licensees The Secretary may accept a written undertaking from a licensee as to the manner in which the licensee will exercise functions under the licence. Note— Part 9 provides that a breach of such an undertaking is grounds for taking disciplinary action against a person. 24 Duty of licensee to notify failure to account (1) A licensee must notify the Secretary as soon as practicable after becoming aware of any failure to account by the licensee. Maximum penalty—50 penalty units. (2) In this section— failure to account has the same meaning as in Part 8 (Management and receivership). 25 Industry association to report failure to account A body engaged in the provision of services to conveyancers as an industry association or similar undertaking must notify the Secretary in writing within 7 days after becoming aware of any failure to account by a licensee. Maximum penalty—100 penalty units. 26 Sharing of receipts with unqualified persons (1) A licensee must not share the receipts of a conveyancing business with another person unless— (a) the other person is a licensee, or (b) the sharing of those receipts with that other person is approved by the Secretary and does not contravene the provisions of any regulation under this section. Maximum penalty—200 penalty units in the case of a corporation or 100 penalty units in any other case. (2) An approval may not be given under this section unless the Secretary is satisfied that the sharing of the receipts of the conveyancing business in accordance with the approval— (a) will not result in a person other than a licensee gaining control of the business, and (b) will not adversely affect the independent conduct of the licensee's business or give rise to a conflict between the interests of the licensee and the interests of any of the licensee's clients. (3) This section does not prevent a party to a transaction from recovering from any other person the costs of conveyancing work carried out by a licensee who is employed by the party under a contract of service. (4) The regulations may make provision for or with respect to restricting the circumstances in which a licensee may share the receipts of a conveyancing business with another person who is not a licensee. 27 Partnerships (1) A licensee must not be in partnership with another person unless— (a) the other person is a licensee, or (b) the partnership with that other person is approved by the Secretary and does not contravene the provisions of any regulation under this section. Maximum penalty—200 penalty units in the case of a corporation or 100 penalty units in any other case. (2) An approval for a partnership may not be given under this section unless the Secretary is satisfied that the business of the partnership concerned will include conveyancing business. (3) An approval may not be given for a partnership with a person who is the holder of a licence or certificate of registration under the Property and Stock Agents Act 2002. (4) The regulations may make provision for or with respect to restricting the classes of persons (other than licensees) with whom a licensee may be in partnership. (5) The following provisions apply in respect of a partnership in which a licensee is a member— (a) a partner who is not a licensee is not guilty of an offence under Part 2.1 of the Legal Profession Uniform Law (NSW) merely because the partner conducts business of the partnership that is conveyancing business, (b) a partner who is not a licensee is not guilty of an offence under Part 2.1 of the Legal Profession Uniform Law (NSW) merely because the partner receives any fee, gain or reward for business of the partnership that is conveyancing business, (c) a partner who is not a licensee is not guilty of an offence under Part 2.1 of the Legal Profession Uniform Law (NSW) merely because the partner holds out, advertises or represents himself or herself as a member of a partnership conducting conveyancing business, (d) a partner who is a licensee does not contravene this Part merely because the partner shares with any other partner the receipts of business of the partnership that is conveyancing business, (e) Division 2 of Part 5 (Trust money), Part 7 (Claims arising from failure to account) and Part 8 (Management and receivership) apply, subject to the regulations, as if each partner who is not a licensee were a licensee. Those provisions so apply in connection with any business of the partnership (whether or not it is conveyancing business). 28 Conduct of other businesses (1) The regulations may prohibit a licensee who conducts a conveyancing business, or who is employed in the conduct of a conveyancing business, from conducting, or being employed in the conduct of, any other business or class of businesses. (2) A licensee must not conduct any business, or be employed in the conduct of any business, in contravention of the regulations under this section. Maximum penalty—200 penalty units in the case of a corporation or 100 penalty units in any other case. Division 3 Employees 29 Employment of disqualified persons (1) A licensee must not, in connection with his or her conveyancing business, employ or pay a person whom the licensee knows to be a disqualified person. (2) Subsection (1) does not apply in relation to a person who is employed or paid in accordance with leave given by the Secretary. (3) If the Secretary refuses an application by a person for leave under this section, the person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (4) Leave given under this section may be limited as to time or given subject to specified conditions. (5) A disqualified person must not seek employment or payment in connection with a licensee's conveyancing business unless he or she has informed the licensee of the fact of his or her disqualification. Maximum penalty (subsection (5)): 50 penalty units. 30 Liability of licensee for acts of employees A licensee who employs a person at any place of business of the licensee is responsible, in tort and in contract, for anything done or not done by the person— (a) within the scope of the employee's authority, or (b) for the benefit, or the purported or intended benefit, of the licensee or the licensee's business. 31 Licensee to keep records of certain employees (1) A licensee must make and keep a record of the name and residential address of each employee that the licensee employs as a conveyancer. (2) (Repealed) (3) The licensee must keep the record in the form of a register of employees and that register must be kept at the place of business of the licensee at which the employee is employed or at such other place as the Secretary may approve. Maximum penalty—50 penalty units. 32 Duty of licensee to notify disqualification of employee A licensee must notify the Secretary in writing within 7 days after becoming aware that a person employed by the licensee has become a disqualified person. Maximum penalty—50 penalty units. 33 Employees required to notify disqualification A person employed by a licensee must notify the licensee within 7 days after the person becomes a disqualified person. Maximum penalty—50 penalty units. Division 4 Advertisements and representations 34 (Repealed) 35 Advertisements include information about licensee A licensee must not publish or cause to be published (in a newspaper or otherwise, and whether in print or on a publicly accessible website) an advertisement relating to or in connection with the licensee's business unless the advertisement includes the following— (a) if the licensee is an individual carrying on business in the licensee's own name and is not a member of a partnership—the licensee's name, (b) if the licensee is an individual carrying on business under a business name registered under any Act relating to the registration of business names—either the licensee's name or that business name, (c) if the licensee carries on business as a member of a partnership—either the licensee's name or the name of the partnership, or the name under which the partnership is registered under any Act relating to the registration of business names, (d) if the licensee is a corporation and the corporation is carrying on business in its own name—the name of the corporation, (e) if the licensee is a corporation and the corporation is carrying on business under a business name registered under any Act relating to the registration of business names—either its own name or that business name, (f) the number of the licence. Maximum penalty—100 penalty units. Division 5 Disclosure of costs and other matters 36 Obligation to disclose costs and other matters to clients (1) A licensee must disclose to a client in accordance with this Division the basis of the costs for conveyancing work to be carried out for the client by the licensee and any conflict or beneficial interest of a kind required to be disclosed by the regulations. Maximum penalty—200 penalty units in the case of a corporation or 100 penalty units in any other case. (2) The following matters are to be disclosed to the client— (a) the amount of the costs, if known, (b) if the amount of the costs is not known, the basis of calculating the costs, (c) the billing arrangements, (d) the client's rights under Part 4 in relation to the hearing of disputes about the fees by the Tribunal, (e) any conflict or beneficial interest of a kind required to be disclosed by the regulations, (f) any other matter required to be disclosed by the regulations. 37 When disclosure to be made (1) A disclosure under this Division is to be made before or when the licensee is retained to carry out the conveyancing work concerned, unless this section otherwise provides. (2) If it is not reasonably practicable to make the disclosure before or when the licensee is retained, the disclosure is to be made as soon as practicable after the licensee is so retained. 38 Disclosure to be in writing (1) A disclosure under this Division must be made in writing and be expressed in clear plain language. (2) The disclosure may be made separately or in a costs agreement or in any other contract relating to the carrying out by the licensee of the conveyancing work concerned. 39 Exception to disclosure A disclosure is not required to be made under this Division when it would not be reasonable to require it. 40 Regulations as to disclosure The regulations may make provision for or with respect to— (a) the information to be disclosed under this Division, and (b) when it would not be reasonable to require a disclosure to be made under this Division. 41 Effect of non-disclosure of matters related to basis of costs (1) If a licensee fails to make a disclosure to a client in accordance with this Division of the matters required to be disclosed by section 36 in relation to costs, the client need not pay the costs of the conveyancing work. (2) A licensee who fails to make a disclosure in accordance with this Division of the matters required to be disclosed by section 36 in relation to costs may not maintain proceedings for the recovery of the costs. Part 4 Resolution of costs disputes Division 1 Interpretation 42 Definition In this Part— costs dispute means a dispute about costs payable in respect of conveyancing work. Division 2 Preliminary procedure 43 Notifying Tribunal about costs dispute (1) Any person may notify the Tribunal, in accordance with the regulations, of any costs dispute that the person has with another person. (2) A notification must be accompanied by the fee prescribed by the regulations under the Civil and Administrative Tribunal Act 2013 for an application to the Tribunal in its Consumer and Commercial Division (unless the fee is waived or postponed under that Act). 44 Attempts to resolve costs dispute (1) The Tribunal may, on notification of a costs dispute, take any action that it considers necessary to resolve the dispute. (2) On notification of a costs dispute, the Tribunal must determine whether the subject-matter of the dispute should be assessed by an independent expert and may, if it considers it appropriate, refer the dispute to an independent expert for assessment. (3) An independent expert may be selected from a panel of experts approved by the President of the Tribunal. (4) An independent expert to whom a costs dispute is referred under this section must prepare a written report on the dispute and provide a copy of it to the parties and to the Tribunal within the time limit specified by the Tribunal. (5) Nothing in this section prevents the Tribunal using (or requiring the use of) resolution processes under the Civil and Administrative Tribunal Act 2013 to resolve a costs dispute. 45 Costs of assessment (1) The costs of assessment by an independent expert, including the costs payable to the expert, are to be borne equally by the parties to the dispute. (2) Regulations made for the purposes of this section may provide that the parties are to bear the costs— (a) in such manner as may be ordered by the Tribunal, or (b) in any other prescribed manner. 46 Procedure if agreement reached on costs dispute (1) If parties to a costs dispute reach an agreement or arrangement during or after an assessment by an independent expert, that agreement must be put in writing by the independent expert, signed by the parties to the dispute and filed with the Tribunal. (2) The Tribunal is to make such orders as it considers appropriate to give effect to the agreement. Division 3 Determination of costs dispute 47 Application for determination of costs dispute Any person may apply to the Tribunal for the determination of a costs dispute. 48 Preliminary procedure must be followed An application must not be accepted unless the procedure relating to costs disputes set out in Division 2 has been followed in relation to the costs dispute or unless the President of the Tribunal does not consider it appropriate that the procedure be followed. 49 Jurisdiction of Civil and Administrative Tribunal in relation to costs disputes (1) The Tribunal has jurisdiction to hear and determine any costs dispute brought before it in accordance with this Part. (2) The Tribunal has jurisdiction to hear and determine any costs dispute whether or not the matter to which the dispute relates arose before or after the commencement of this Division, except as provided by this Act. 50 Tribunal to be chiefly responsible for resolving costs disputes (1) This section applies if a person starts any proceedings in or before any court in respect of a costs dispute and the costs dispute is one that could be heard by the Tribunal under this Division. (2) If a defendant in proceedings to which this section applies makes an application for the proceedings to be transferred, the proceedings must be transferred to the Tribunal in accordance with the regulations and are to continue before the Tribunal as if they had been instituted there. (3) This section has effect despite clauses 5 and 6 of Schedule 4 to the Civil and Administrative Tribunal Act 2013. 51 Powers of Tribunal (1) In determining a costs dispute, the Tribunal is empowered to make one or more of the following orders as it considers appropriate— (a) an order that one party to the proceedings pay money to another party or to a person specified in the order, (b) an order that one party to the proceedings return to another party, or to a person specified in the order, documents in the possession or under the control of the party, (c) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings. (2) Sections 79R and 79T–79V of the Fair Trading Act 1987 apply, with any necessary modifications, to and in respect of the determination of a costs dispute. Part 5 Trust money Division 1 Preliminary 52 Interpretation (1) In this Part— trust money means money received for or on behalf of any person by a licensee in connection with the licensee's conveyancing business. (2) A reference in this Part to a licensee includes a reference to a person who has ceased to be a licensee and to the personal representative of a licensee who has died. (3) In the application of this Part— (a) to a person who has ceased to be a licensee, a reference to money received for or on behalf of a person by a licensee is to be read as a reference to money received by that person for or on behalf of any other person in connection with his or her business as a licensee, and (b) to the personal representative of a licensee who has died, a reference to money received for or on behalf of a person by a licensee is to be read as a reference to money received by that licensee or personal representative for or on behalf of a person in connection with the business carried on by that licensee. Division 2 Payment of trust money into trust account 53 Payment of trust money into trust account (1) Money received for or on behalf of any person by a licensee in connection with the licensee's conveyancing business— (a) is to be held by the licensee or (if the licensee is employed by a corporation) by the corporation, exclusively for that person, and (b) is to be paid to the person or disbursed as the person directs, and (c) until so paid or disbursed, is to be paid into and retained in a trust account (whether general or separate) at an authorised deposit-taking institution in New South Wales and approved by the Secretary for the purposes of this Part. (2) If the licence is held by a corporation, the trust account is to be in the name of the corporation and in any other case is to be in the name of the licensee or of the firm of licensees of which the licensee is a member. (3) Subsection (1) does not prevent a licensee from— (a) withdrawing or receiving, from trust money, money due to the licensee for costs so long as the procedure prescribed by the regulations is followed, and (b) holding, or disposing of, a cheque or other negotiable instrument payable to a third party if the licensee does so on behalf of a client and in accordance with directions given by the client, and (c) exercising a general retaining lien for unpaid costs and disbursements in respect of money in a trust account (other than money received subject to an express direction by the client with respect to the purposes for which the money is to be applied). (4) A lien referred to in subsection (3) (c)— (a) may not be exercised for an amount in excess of the sum of the costs and disbursements unpaid, and (b) may not be exercised unless— (i) the licensee has disclosed to the client, in accordance with Division 5 of Part 3, the basis of the costs for the conveyancing work concerned, or (ii) if such a disclosure is not required to be made (as provided by sections 39 and 40 and any relevant regulations)—the licensee has served a bill of costs on the client. (5) The name of a trust account and the description of the trust account in the books and records of the licensee and also on all cheques drawn on the trust account— (a) must include the name of the licensee corporation, licensee or firm of licensees in whose name the trust account is kept, and (b) must include the words "Trust Account", and (c) may include, at the end of the account's name, a name or other matter to identify the person on whose behalf money in the account is held. (6) When opening a trust account at an authorised deposit-taking institution for the purpose of complying with this section, the licensee concerned must ensure that the authorised deposit-taking institution is notified in writing that the account is a trust account required by this Act. (7) A licensee must, within 14 days after closing a trust account, notify the Secretary in writing of the closure. Maximum penalty—100 penalty units. 54 Approval of authorised deposit-taking institutions (1) The Secretary may approve an authorised deposit-taking institution for the purposes of this Part and may revoke any such approval by notice in writing to the authorised deposit-taking institution. (2) The Secretary is not to approve an authorised deposit-taking institution for the purposes of this Part unless satisfied that the institution is able to discharge the obligations of an authorised deposit-taking institution under this Part. (3) An authorised deposit-taking institution that is the subject of an approval that is in force for the purposes of Part 7 of the Property and Stock Agents Act 2002 is taken to have been approved by the Secretary for the purposes of this Part. 55 Trust money not available to pay licensee's debts (1) Trust money is not available for the payment of the debts of the licensee to any other creditor of the licensee, or liable to be attached or taken in execution under the order or process of any court at the instance of any other creditor of the licensee. (2) This section does not take away or affect any just claim or lien that any licensee may have against or upon trust money. 56 Licensee to notify trust account becoming overdrawn A licensee must, within 5 days after becoming aware that a trust account of the licensee has become overdrawn, notify the Secretary in writing of— (a) the name and number of the account, and (b) the amount by which the account is overdrawn, and (c) the reason for the account becoming overdrawn. Maximum penalty—100 penalty units. 57 Interest earned on trust accounts to be paid to Statutory Interest Account (1) Sections 90 and 91 of the Property and Stock Agents Act 2002 apply in respect of all money held in a general trust account under this Division as if— (a) the trust account were a trust account opened and kept under section 86 of that Act, and (b) the licensee who opened and keeps the trust account were a licensee under that Act. Note— Section 90 of the Property and Stock Agents Act 2002 provides for interest earned on trust accounts to be paid to the Statutory Interest Account. Section 91 requires authorised deposit-taking institutions to notify the Secretary of certain matters with respect to trust accounts kept with the institution, including the number of trust accounts opened with the institution during a month and the names of the licensees who opened the accounts. (2) A licensee must, when opening a trust account at an authorised deposit-taking institution under this Division, ensure that the authorised deposit-taking institution is notified that the trust account is, for the purposes of sections 90 and 91 of the Property and Stock Agents Act 2002, to be regarded as a trust account required by that Act. Such a notification is, for the purposes of those sections, to be regarded as a notification that the trust account concerned is required by that Act. Division 3 Responsibilities of authorised deposit-taking institutions 58 Overdrawn trust accounts When an authorised deposit-taking institution becomes aware that a trust account kept with it under this Part is overdrawn, the institution must as soon as practicable (and in any case within 5 business days) after becoming so aware inform the Secretary of the following by notice in writing— (a) the name and business address of the licensee concerned, (b) the name and number of the account, (c) the date on which the account became overdrawn, (d) the amount by which the account is overdrawn. Maximum penalty—100 penalty units. 59 Dishonoured cheques Within 5 business days of an authorised deposit-taking institution becoming aware that a cheque presented on a trust account kept with it under this Part has been dishonoured, the institution must, by notice in writing, inform the Secretary of the following— (a) the name and business address of the licensee concerned, (b) the name and number of the account, (c) the amount of the dishonour, (d) the date on which the cheque was dishonoured. Maximum penalty—100 penalty units. 60 Annual certification by auditor Not later than 31 May in each year, an authorised deposit-taking institution approved for the purposes of this Part must provide to the Secretary a certificate given by a registered company auditor (within the meaning of the Corporations Act) certifying as to the following— (a) that the institution has complied with the requirements of this Part in relation to trust accounts kept by it under this Part during the 12 month period ending on 30 April immediately preceding that 31 May, (b) the total amount of interest that the institution paid under this Part to the Secretary during that 12 month period in respect of those trust accounts for crediting to the Statutory Interest Account. Maximum penalty—100 penalty units. 61 Protection of authorised deposit-taking institutions from liability (1) An authorised deposit-taking institution— (a) does not incur liability, and is not obliged to make inquiries, in relation to any transaction concerning an account of a licensee kept with the institution or with some other financial institution, and (b) is, in relation to any such transaction, taken not to have any knowledge of a right of any person to money credited to such an account, unless it would incur such a liability, be obliged to make such inquiries or be taken to have that knowledge in relation to an account kept with it in respect of a person absolutely entitled to the money held in that account. (2) This section does not relieve an authorised deposit-taking institution from any liability or obligation that it would have apart from this Act. (3) An authorised deposit-taking institution at which a licensee keeps an account for clients' money does not, as regards any liability that the licensee has to the institution (other than a liability relating to that account), have a right to any of the money held in that account, whether by way of set-off, counterclaim, charge or otherwise. Division 4 Unclaimed trust money 62 Unclaimed trust money held by licensee (1) A licensee who in the month of January in a year holds in a trust account kept by the licensee money that was received by the licensee more than 2 years before that month must furnish to the Secretary in that month a statement (an unclaimed money statement) showing particulars of— (a) the money so held, and (b) each person for whom or on whose behalf the money is held, and (c) the address last known to the licensee of each of those persons. (2) A statement under this section is to be in the form approved by the Secretary. 63 Unclaimed trust money held by former licensee or personal representative (1) A former licensee, or the personal representative of a deceased licensee, who holds money in a trust account kept under this Act must furnish to the Secretary a statement giving particulars of— (a) the money held in the trust account as at the date on which the statement is furnished, and (b) the names of the persons for whom or on whose behalf the money is held, and (c) the address of each of those persons last known to the person furnishing the statement. (2) This statement is the first statement that the former licensee or personal representative is required to furnish and it is to be furnished within 3 months after the date on which the person ceased to be a licensee or became the personal representative of the deceased licensee. (3) The former licensee or personal representative must furnish a further statement (an unclaimed money statement) within 14 days after the period of 12 months has elapsed since the first statement was furnished. (4) The further statement is to give particulars of the same matters as the first statement and also include particulars of any payments made from the trust account or other place where money is held since the date of the first statement. (5) A statement under this section is to be in the form approved by the Secretary. (6) The regulations may exempt money or a class of money from the operation of this section. 64 Disposal of unclaimed money in trust accounts (1) When the Secretary receives an unclaimed money statement under this Division, the Secretary is to— (a) send by post or email to each person for whom or on whose behalf any money referred to in the statement is held a notice (an individual notice) in writing addressed to the person at the person's address shown in the statement stating the particulars of the money held for or on behalf of that person, and (b) cause notification to be published in the Gazette (a Gazette notification) stating the particulars of the money held for or on behalf of each of those persons. (2) Each individual notice and the Gazette notification is to state that, if the money is not paid out of the trust account or other place in which it is held within 3 months after the date of publication of the Gazette notification, the person holding the money will be required to pay it to the Secretary. (3) At any time after the expiration of that 3 months the Secretary may, by a notice in writing served personally, by email or by post on the person by whom the money is held, require that person— (a) to pay to the Secretary any money referred to in the Gazette notification that has not been previously paid by that person out of the trust account or other place in which it is held, and (b) to furnish to the Secretary, within such period as may be specified in the notice to the person, a statement showing particulars of any payments made out of the money referred to in the Gazette notification since the unclaimed money statement was made. (4) The Secretary must pay any money received by the Secretary under this section into the Compensation Fund. (5) Within 2 months after 31 December in each year, the Secretary must pay into the Consolidated Fund all money received by the Secretary and paid into the Compensation Fund under this section during the period of 12 months ending on that 31 December (less any of that money that has been paid from the Compensation Fund to the person entitled to the money). (5A) A statement or notice may only be sent by email to a person if the person has provided an email address for receiving statements or notices of that kind. (6) A person who fails to comply with the requirements of any notice served on the person under this section is guilty of an offence. Maximum penalty—50 penalty units. 65 Repayment of unclaimed trust money (1) The Secretary must, on application by a person entitled to an amount of money paid under this Division into the Compensation Fund or the Consolidated Fund, pay that amount to the person out of the Compensation Fund. (2) When an amount is paid out of the Compensation Fund in respect of an amount that has been paid into the Consolidated Fund, the Treasurer must, on application by the Secretary, pay that amount to the Secretary out of the Consolidated Fund (which is appropriated accordingly) for payment into the Compensation Fund. Division 5 Information about trust accounts or transactions 66 Secretary may require information (1) The Secretary may by notice in writing served on a licensee require the licensee to furnish to the Secretary in the manner required by the notice a statement in writing setting out full particulars as to any of the following— (a) the name of the trust account on which the licensee operates in accordance with this Act, the name of the authorised deposit-taking institution at which the account is current, the balance of the money standing to the credit of the account as at a date specified in the notice, and particulars of all cheques drawn on the account as at such date and not presented and duly paid, (b) any money paid by any person to the licensee or received by the licensee for or on behalf of any person in connection with the licensee's business as a licensee and, if not still held by the licensee, the manner and time of its disbursement, (c) any transaction by or with the licensee as a licensee. (2) The licensee must comply with a notice under this section within 7 days after it is served on the licensee. (3) A notice under this section cannot relate to any transaction by or with the licensee more than 3 years before the notice is served on the licensee. 67 Person concerned in transaction may request itemised account (1) A person directly concerned in any transaction by or with a licensee in connection with the licensee's conveyancing business may request the licensee in writing to render to the person in the manner prescribed by the regulations an itemised account of the transaction. (2) The licensee must comply with the request within 14 days after the request is served on the licensee. (3) A person may not request an itemised account of a transaction that took place more than 6 months before the making of the request. 68 Offence (1) A licensee must not fail without reasonable excuse (proof of which lies on the licensee) to comply with a requirement under this Division. (2) A licensee must not, in purported compliance with a requirement under this Division, furnish information that the licensee knows is false or misleading in a material particular. Maximum penalty—100 penalty units. Part 6 Records Division 1 Keeping and inspection of records 69 Licensee's records (1) In this Act— licensee's records means records and other documents required to be kept by a licensee under this Act or the regulations. (2) The regulations may make provision for or with respect to— (a) requiring licensees to make and keep specified records and documents relating to the licensee's conveyancing business, accounts kept in connection with that business and transactions carried out by the l