New South Wales: Property and Stock Agents Act 2002 (NSW)

Property and Stock Agents Act 2002 No 66 An Act to provide for the regulation of property and stock agents; to repeal the Property, Stock and Business Agents Act 1941; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Property and Stock Agents Act 2002. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— agency agreement means an agreement pursuant to which a licensee performs or agrees to perform services in the capacity of a licensee. agent means— (a) a real estate agent, or (b) a stock and station agent, or (c) a strata managing agent. assistant agent means— (a) an assistant real estate agent, or (b) an assistant stock and station agent, or (c) an assistant strata managing agent. assistant real estate agent means a person (other than the holder of a real estate agent's licence) who, as an employee of a real estate agent or a corporation that carries on the business of a real estate agent— (a) exercises any real estate agent function, or (b) engages in any other activity that is prescribed by the regulations for the purposes of this definition. assistant stock and station agent means a person (other than the holder of a stock and station agent's licence) who, as an employee of a stock and station agent or a corporation that carries on the business of a stock and station agent— (a) exercises any of the functions of a stock and station agent, or (b) engages in any other activity that is prescribed by the regulations for the purposes of this definition. assistant strata managing agent means a person (other than the holder of a strata managing agent's licence) who, as an employee of a strata managing agent or a corporation that carries on the business of a strata managing agent— (a) exercises any of the functions of a strata managing agent, or (b) engages in any other activity that is prescribed by the regulations for the purposes of this definition. association means a community association, precinct association or neighbourhood association constituted under the Community Land Development Act 2021. auction means the sale of property by any means (including the Internet) whereby— (a) the highest, the lowest, or any bidder is the purchaser, or the first person who claims the property submitted for sale at a certain price named by the person acting as auctioneer is the purchaser, or (b) there is a competition for the purchase of the property in any way commonly known and understood to be by auction. auctioneer means any person— (a) who, in the course of trade or business and at an auction (or a proposed auction), acts as an auctioneer or sells for reward (whether monetary or otherwise) any land or any livestock, or (b) who sells or offers for sale, or who attempts to sell, any land or any livestock by way of auction, or (c) who engages in any other activity that is prescribed for the purposes of this definition. authorised officer has the meaning given in Part 13 (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. business day means a day other than a Saturday, Sunday, public holiday or bank holiday in New South Wales. certificate of registration means a certificate of registration under this Act. class of licence means a class 1 or a class 2 licence. Note. See sections 17 (1A) and 31. A class 1 licence is required for an individual to be a licensee in charge of a business. Compensation Fund or Fund means the Property Services Compensation Fund established and maintained under this Act. Corporations Act means the Corporations Act 2001 of the Commonwealth. corresponding Act means an Act of another State or a Territory that is declared by the regulations to be a corresponding Act for the purposes of this Act. Department means the Department of Customer Service. disqualified person has the meaning given by section 16. employee includes any person employed whether on salary, wages, bonus, commission, fees, allowance or other remuneration and includes a director or member of the governing body of a corporation. former licensee means a person who has been but has ceased to be a licensee. function includes a power, authority or duty, and exercise a function includes perform a duty. individual means a natural person and does not include a corporation. land includes— (a) a lot within the meaning of the Strata Schemes Development Act 2015, and (b) shares that, under a company title scheme, entitle their holder to the possession of premises. 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 8 (Records). livestock includes horses, cattle, asses, mules, sheep, swine, camels, goats, alpacas, ostriches, emus and such other animals as may be prescribed by the regulations. livestock transaction means the purchase, sale or other disposal of livestock, whether or not an auction is involved. money includes an instrument for the payment of money in any case where the instrument may be paid into a bank or other authorised 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 the person's behalf or not. on-site residential property manager functions—see section 3A (2). owners corporation means an owners corporation constituted under the Strata Schemes Management Act 2015. principal place of business means, in relation to a licensee carrying on business at more than one place, the place of business specified in the application for the licence as the licensee's principal place of business. public holiday means a day appointed under the Public Holidays Act 2010 or another Act as a public holiday. real estate agent means a person (whether or not the person carries on any other business) who, for reward (whether monetary or otherwise), exercises real estate agent functions in the course of carrying on a business. real estate agent functions—see section 3A (1). real estate sale or leasing functions—see section 3A (2). real estate transaction means the purchase, sale, exchange, lease, assignment or other disposal of land, whether or not an auction is involved. records includes books, accounts and other documents. registered person means the holder of a certificate of registration under this Act. regulated functions means real estate agent functions or the functions of a stock and station agent or a strata managing agent. residential property has the same meaning as in Division 8 of Part 4 of the Conveyancing Act 1919. rural land means land that is used or apparently intended to be used for gain or profit for grazing of livestock, dairying, poultry farming, viticulture, orcharding, beekeeping, horticulture, the growing of crops of any kind, vegetable growing or any other purpose declared by the regulations to be a rural purpose. 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. stock and station agent means a person (whether or not the person carries on any other business) who, for reward (whether monetary or otherwise), carries on business as an auctioneer of rural land or livestock or as an agent for— (a) doing (where the land concerned consists of rural land) any one or more of the things referred to in paragraphs (b)–(e) of the definition of real estate sale or leasing functions in section 3A, or (b) a livestock transaction, or (c) inducing or attempting to induce or negotiating with a view to inducing any person to enter into, or to make or accept an offer to enter into, a livestock transaction or a contract for a livestock transaction, or (d) providing agistment for livestock or collecting of fees for the agistment of livestock, or (e) any other activity that is prescribed by the regulations for the purposes of this definition. strata managing agent—see section 3B. 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. (2) (Repealed) (3) Where a person carries on business as a real estate agent and also carries on— (a) business as an agent for the collection of instalments of principal or interest payable under mortgages of land or under contracts for the sale on terms of land, or (b) business as an agent for the collection of amounts payable in relation to any premises to a company by a person who is the holder of shares in the company and who, by reason of the person's holding those shares, is entitled to possession of those premises, or (b1) business as an agent for the collection of instalments of principal or interest payable under bills of sale given in respect of businesses or professional practices or under contracts for the sale on terms of businesses or professional practices, or (c) the business of arranging for the erection of buildings for or on behalf of other persons, a reference in this Act to any such person acting as, or carrying on the business of, a real estate agent includes a reference to that person carrying on business as an agent for the collection of those instalments or amounts or to that person carrying on the business of so arranging for the erection of buildings. (4) Where a person carries on business as a stock and station agent and also carries on business as an agent for the collection of instalments of principal or interest payable under mortgages of rural land or under contracts for the sale on terms of any such land, a reference in this Act to any such person acting as, or carrying on the business of, a stock and station agent includes a reference to that person carrying on business as an agent for the collection of those instalments. (5) Notes included in this Act do not form part of this Act. 3A Real estate agent functions (1) In this Act, real estate agent functions means any of the following functions— (a) business agent functions, (b) on-site residential property manager functions, (c) real estate sale or leasing functions, but does not include acting as an auctioneer or agent in respect of any parcel of rural land (unless the regulations otherwise provide) or any other function prescribed by the regulations. (2) For the purposes of this Act— business agent functions means— (a) selling, buying or exchanging or otherwise dealing with or disposing of businesses or professional practices, or any share or interest in or concerning or the goodwill of, or any stocks connected with, businesses or professional practices, or (b) negotiating for the sale, purchase or exchange or any other dealing with or disposition of businesses or professional practices, or any share or interest in or concerning or the goodwill of, or any stocks connected with, businesses or professional practices, or (c) any other function that is prescribed by the regulations for the purposes of this definition. on-site residential property manager functions means— (a) acting as an agent for giving possession of residential premises under a lease, licence or other contract, or (b) acting as an agent for collecting bonds, deposits, rents, fees or other charges in connection with any such lease, licence or other contract, or (c) any other function that is prescribed by the regulations for the purposes of this definition. real estate sale or leasing functions means— (a) acting as an auctioneer of land, or (b) acting as agent for a real estate transaction, or (c) acting as agent for inducing or attempting to induce or negotiating with a view to inducing any person to enter into, or to make or accept an offer to enter into, a real estate transaction or a contract for a real estate transaction, or (d) acting as agent for the introduction, or arranging for the introduction, of a prospective purchaser, lessee or licensee of land to another licensed agent or to the owner, or the agent of the owner, of land, or (e) acting as agent collecting rents payable in respect of any lease of land and otherwise providing property management services in respect of the leasing of any land, or (f) any other function in connection with land that is prescribed by the regulations for the purposes of this definition. Note. This definition is not limited to the selling of land and extends to an agent acting on behalf of the buyer of land (a buyer's agent). 3B Strata managing agents (1) A person is a strata managing agent for the purposes of this Act if the person (whether or not the person carries on any other business), for reward (whether monetary or otherwise), exercises— (a) any function of an owners corporation, or (b) any function of an association, or (c) any other function that is prescribed by the regulations for the purposes of this definition. (2) Subsection (1) (a) does not apply to— (a) a person who— (i) is the owner of a lot to which the strata scheme for which the owners corporation is constituted relates, or (ii) is the lessee of a lot to which the leasehold strata scheme for which the owners corporation is constituted relates, or (iii) is the secretary or treasurer of the strata committee of the owners corporation, and who exercises or performs only functions of the owners corporation required, by the by-laws in force in respect of the strata scheme or leasehold strata scheme for which the owners corporation is constituted, to be exercised or performed by the secretary or treasurer of that strata committee or of the owners corporation, or (b) a person who maintains or repairs any property that the owners corporation is required to maintain and keep in repair, or (c) a person prescribed by the regulations. (3) Subsection (1) (b) does not apply to— (a) the proprietor of a lot within the scheme, or (b) the secretary or treasurer of the association, or (c) a person who is authorised by the management statement for the scheme to exercise the functions of the secretary or treasurer of the association, or (d) a person who maintains or repairs any property that the association is required to maintain and keep in repair, or (e) a person prescribed by the regulations. 4 Regulations may exempt persons and activities from Act (1) The regulations may make provision for or with respect to exempting a specified person, or a person who is a member of a specified class of persons, from the operation of all or specified provisions of this Act in respect of any act or omission by the person in the person's capacity as agent— (a) for a specified class of persons, or (b) in respect of a specified class of activities, or (c) in respect of activities involving a specified class of property. (2) The regulations may make provision that is necessary or convenient in connection with an exemption under subsection (1), including provisions for or with respect to any of the following— (a) imposing liabilities on a person (not necessarily the agent concerned) in respect of pecuniary loss suffered by a person because of a failure by the agent to account for money or other valuable property entrusted to the agent or an employee of the agent in the course of activities to which an exemption under this section applies, (b) requiring the disclosure of information to the Secretary in connection with the activities of a person pursuant to an exemption under this section, (c) requiring the obtaining of insurance, including professional indemnity insurance and fidelity guarantee insurance, in connection with the activities of a person pursuant to an exemption under this section, (d) requirements as to the holding of money on behalf of a party to a transaction in connection with which a person acts as agent pursuant to an exemption under this section, (e) disclosures to be made by a person acting pursuant to an exemption under this section, (f) regulating the payment of commission and other remuneration in connection with the activities of a person pursuant to an exemption under this section, (g) the placing of limitations on the authority of a person to act as agent pursuant to an exemption under this section, (h) the auditing of compliance with conditions and requirements imposed by the regulations under this section, (i) modifying the operation of any provision of this Act in its application to the activities of a person pursuant to an exemption under this section, (j) the payment of fees to the Secretary in connection with an exemption under this section. (3) The regulations under this section may also create offences punishable by a penalty not exceeding 100 penalty units for any contravention of the regulations under this section or conditions or requirements imposed by those regulations. (4) Nothing in this section affects the generality of section 230 (2) (g). 5 Exemptions (1) This Act does not require a licence to be held by, and does not require a certificate of registration to be held by any person in their capacity as employee of, any of the following— (a) a Minister of the Crown whether a Minister of the State of New South Wales or of the Commonwealth, (b) any Government Department of the State of New South Wales or the Commonwealth (including any statutory corporation representing the Crown), (c) a council within the meaning of the Local Government Act 1993, (d) any public authority prescribed by the regulations, (e) any officer or employee of the Crown or of any such Minister, department, corporation, council or authority in the exercise of his or her functions as such officer or employee, (f) the NSW Trustee and Guardian or any executor, administrator, trustee, liquidator, official receiver, trustee in bankruptcy of a bankrupt's estate, trustee under a composition or scheme of arrangement or under a deed of arrangement or under a deed of assignment, or manager of an estate appointed under the NSW Trustee and Guardian Act 2009, in the exercise of functions as such, (g) any person for the purposes of any sale made of Crown lands or other Crown property or for the purposes of any sale of any property made by virtue of any writ or process issued out of any Court or made in obedience to any process issued by any Court or judge or justice for the recovery of any fine, penalty or award, or under any rule, order or decree of any competent Court or made pursuant to the Public Spaces (Unattended Property) Act 2021, (h) a receiver appointed under this Act, in the exercise of the receiver's functions under this Act, (i) the New South Wales Land and Housing Corporation, (j), (k) (Repealed) (l) the Aboriginal Housing Office, (m) a registered community housing provider within the meaning of the Community Housing Providers National Law (NSW), or an organisation for the time being registered under Part 5 of the Aboriginal Housing Act 1998, (n) a person or organisation, or a person or organisation of a class, prescribed by the regulations as not requiring a licence. (2) This Act does not prevent any person for the time being entitled to practise as an Australian legal practitioner from exercising any function that, had this Act not been enacted, the person might lawfully have exercised as an Australian legal practitioner. (3) An exemption under subsection (1) (f) that allows a person to carry on a business lawfully without a licence expires 3 months after the management of the business vests in the person. (4) This Act does not apply to a sale by auction made for the purposes of or in the course of a fundraising appeal within the meaning of the Charitable Fundraising Act 1991 if the appeal is made, and the proceeds of the sale are applied, in accordance with that Act. (5) The following persons may exercise business agent functions without the need to hold a licence or certificate of registration— (a) a person who holds an Australian financial services licence under the Corporations Act, (b) a person who is an authorised representative of a financial services licensee within the meaning of Chapter 7 of the Corporations Act. 6 (Repealed) Part 2 Licences and certificates of registration Division 1 Requirement for licence or certificate of registration 7 (Repealed) 8 Agents required to be licensed (1) An individual must not act as or carry on the business of (or advertise, notify or state that the individual acts as or carries on the business of, or is willing to act as or carry on the business of)— (a) a real estate agent, unless the individual is the holder of a real estate agent's licence, or (b) a stock and station agent, unless the individual is the holder of a stock and station agent's licence, or (c) a strata managing agent, unless the person is the holder of a strata managing agent's licence. Maximum penalty—100 penalty units. (2) An individual is not entitled to bring any proceeding in any court or tribunal to recover any commission, fee, gain or reward for any service performed by the individual— (a) as a real estate agent, unless the individual was the holder of a real estate agent's licence, or employed the holder of such a licence, at the time of performing the service, or (b) as a stock and station agent, unless the individual was the holder of a stock and station agent's licence, or employed the holder of such a licence, at the time of performing the service, or (c) as a strata managing agent, unless the individual was the holder of a strata managing agent's licence, or employed the holder of such a licence, at the time of performing the service. (3) This section applies to an individual whether or not the individual is a member of a partnership. (4) The fact that a particular activity is an activity for which more than one type of licence may be appropriate does not require the holding of more than one type of licence so long as at least one of the licences that is appropriate to the activity is held. (5) For the purposes of this section, an individual is not considered to carry on a business merely because the individual is a member of a partnership that carries on that business. (6) An agent who holds a licence may be known as a licensed agent. 9 Corporations require corporation licence (1) A corporation must not act as or carry on the business of (or advertise, notify or state that the corporation acts as or carries on the business of or is willing to act as or carry on the business of) an agent unless the corporation holds a corporation licence. Maximum penalty—200 penalty units. (2) A corporation is not entitled to bring any proceeding in any court to recover any commission, fee, gain or reward for any service performed by the corporation as an agent unless the corporation was the holder of a corporation licence at the time of performing the service. 10 Assistant agents require certificate of registration (1) A person must not do any of the following things unless the person is the holder of a certificate of registration— (a) be or remain as an assistant agent in the employment of a person licensed (or required to be licensed) under this Act, (b) represent, whether expressly or impliedly, that the person is an assistant agent, (c) act as or exercise any of the functions of an assistant agent. Maximum penalty—100 penalty units. (2) An employed licensee is not required to hold both a certificate of registration and a licence to allow the licensee lawfully to do anything that, in the absence of this section, the licensee could lawfully do as the holder of the licence. (3) An assistant agent who holds a certificate of registration may be known as a registered agent. 10A Functions that can be exercised by holders of licences and certificates of registration (1) The regulations may prescribe that specified regulated functions may be exercised— (a) only by the holder of a licence or by the holder of a licence of a particular class, or (b) only under the supervision (direct or otherwise) of the holder of a licence or of the holder of a licence of a particular class. (2) The regulations may provide that a reference to the holder of a licence in a provision of this Act is to be construed as a reference to the holder of a particular class of licence. (3) The authority granted by a licence or certificate of registration is subject to the regulations. 11 Assistant agents must be employed and supervised by licensee (1) The holder of a certificate of registration must not act as or exercise any of the functions of an assistant agent unless the person does so as an employee of the holder of a licence under this Act. (2) The holder of a certificate of registration must not exercise any of the functions of an assistant agent unless he or she does so under the supervision of a person who— (a) is the licensee in charge of the place of business at which the employee is employed, and (b) is the holder of a class 1 licence that allows the licensee to exercise that function without contravening this Act. Note. See Division 2 of Part 3 for requirements for a place at which a business is carried on under a licence to be in the charge of a licensee and for staff to be properly supervised. (3) The holder of a certificate of registration must not act as an auctioneer, except as permitted by subsection (4). (3A) A person carrying on business as an auctioneer must ensure that the holder of a certificate of registration does not act for or on behalf of the person as an auctioneer, except as permitted by subsection (4). (4) The holder of a certificate of registration as an assistant stock and station agent may auction livestock if the holder conducts the auction— (a) as an employee of the holder of a stock and station agent's licence, and (b) under the immediate and direct supervision of the holder of a licence that allows the licensee to auction livestock (whether or not that licensee is the licensee in charge of the place of business at which the employee is employed or is the employer of the employee). Maximum penalty—50 penalty units. 11A Person carrying on business of agent to ensure staff exercising regulated functions hold licence or certificate A person carrying on the business of an agent must not make use of the services of another person (a service provider) to exercise any regulated functions in the course of the business unless— (a) the person is the holder of a licence that authorises the regulated functions concerned to be exercised by the person, and (b) the service provider is the holder of a licence or a certificate of registration that authorises the service provider to exercise the regulated functions concerned, and (c) in the case of a service provider required to hold a certificate of registration to exercise the regulated functions concerned—the service provider is an employee of the person. Maximum penalty—100 penalty units. 12 Production of licence or certificate of registration A licensee or registered person must on request at the premises on which the licensee carries on business or exercises functions as a licensee or registered person produce his or her licence or certificate of registration to an authorised officer and permit the authorised officer to inspect the licence or certificate of registration. Maximum penalty—20 penalty units. 13 Transfer or lending of licence or certificate of registration prohibited (1) The holder of a licence or certificate of registration must not transfer, let out, hire or lend the licence or certificate of registration to any other person or permit any other person to use the licence or certificate of registration. Maximum penalty—100 penalty units. (2) A court that convicts a person for an offence under this section is to order the cancellation of the licence or certificate of registration concerned. The licence or certificate of registration is cancelled on the making of the order. Division 2 Eligibility, qualifications and disqualification 14 Eligibility for a licence or certificate of registration (1) An individual is eligible to hold a licence only if the Secretary is satisfied that the individual— (a) is at least 18 years of age, and (b) is a fit and proper person to hold a licence and each person with whom the individual is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and (c) has the qualifications required for the issue of the licence or class of licence, and (d) is not a disqualified person, and (e) has paid such part of any contribution or levy payable under Part 10 (Compensation Fund) 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) the corporation, and each officer (within the meaning of the Corporations Act) of 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 Part 10 (Compensation Fund) as is due and payable on the granting of the licence. (3) A person is eligible to hold a certificate of registration only if the Secretary is satisfied that the person— (a) is an individual who is at least 16 years of age, and (b) is a fit and proper person to hold a certificate of registration, and (c) has the qualifications required for the issue of a certificate of registration of the type concerned, and (d) is not a disqualified person. Note. The grounds of disqualification in section 16 (1A) do not disqualify a person from eligibility to hold a certificate of registration. (4) The requirement that at least one of the directors of a 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 does not require a director to be accredited as an auctioneer under section 21 merely because the corporation carries on or proposes to carry on the business of an auctioneer. 15 Qualifications for licence or certificate of registration (1) The qualifications required for the issue of a licence or certificate of registration 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, (e) specified working experience. (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 or certificate of registration subject to conditions that limit the person to exercising the functions of licensee or certificate of registration holder in relation to that limited range of activities only. (4) A person does not have the qualifications required for the reissue or restoration of a licence or certificate of registration (as provided by section 26) if the person failed to comply with any condition of the licence or certificate of registration that required the holder to undertake professional development, continuing education or a course of study, unless the Secretary otherwise determines in a particular case. (5) Different qualifications may be approved for different classes of licence. 16 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 (2) that the offence should be ignored, or (b) has a conviction that was recorded in the last 5 years for an offence under section 13 (Lending of licence or certificate of registration prohibited) of this Act, unless the Secretary has determined under subsection (2) that the offence should be ignored, or (c)–(e) (Repealed) (f) is a mentally incapacitated person, or (g) is disqualified from holding a licence, certificate of registration or other authority under a corresponding Act or is the holder of such a licence, certificate of registration or other authority that is suspended, or (h) 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 (i) is in partnership with a person who is a disqualified person, or (j) is for the time being declared to be a disqualified person under Part 12 (Complaints and disciplinary action), or (k) is a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed, or (l) has failed to pay a contribution or levy payable by the person under Part 10 (Compensation Fund) and the failure continues, or (m) 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 (n) has failed to pay any monetary penalty payable by the person under Part 12 (Complaints and disciplinary action) or has failed to comply with a direction given by the Secretary under that Part, and the failure continues, or (o) has failed to comply with the requirements of section 111 to have an audit of the records and documents relating to any trust money carried out within the required time, unless the Secretary determines that in the circumstances that failure should not disqualify the person, or (p) is in breach of any provision of this Act or the regulations that is prescribed by the regulations as a disqualifying breach. (1A) A person is also a disqualified person for the purposes of this Act (except for the purposes of eligibility to hold a certificate of registration) 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 after 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. (2) 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. (2A) The Secretary may determine that the factors listed in subsection (1) (h) or (k) should be ignored for the purposes of this section if, on the basis of information provided to the Secretary, the Secretary considers it is appropriate to do so. (2B) The Secretary may exempt a person from the operation of subsection (1A) (a), (b) or (c) by— (a) certifying, in the case of exemption from subsection (1A) (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 (1A) (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 (1A) (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. (2C) Subsection (1A) (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 (not being 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. (2D) In determining for the purposes of subsection (2B) or (2C) 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. (3) In this section— Chapter 5 body corporate has the same meaning as in the Corporations Act. Division 3 Application and issue procedure 17 Application of Licensing and Registration (Uniform Procedures) Act 2002 (1) The Secretary may grant the following licences and certificates of registration for the purposes of this Act— (a) real estate agents' licences, (b) stock and station agents' licences, (c) strata managing agents' licences, (d) corporation licences, (e) certificates of registration as an assistant real estate agent, (f) certificates of registration as an assistant stock and station agent, (g) certificates of registration as an assistant strata managing agent. (1A) A licence (other than a corporation licence) may be granted as a class 1 licence or a class 2 licence. (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 or certificate of registration, 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 or certificate of registration— (a) the Secretary is taken to be the licensing authority, and (b) the licence or certificate of registration may be amended under section 7 of that Act, and (c) the licence or certificate of registration may not be transferred under section 8 of that Act, and (d) in respect of a licence—the references to 2 weeks, 4 weeks and 8 weeks in section 9 (1) (a), (b) and (c) of that Act are each to be read as references to 6 weeks, and (d1) section 9 of that Act does not have effect in respect of a certificate of registration, and (e) (Repealed) (f) an application is not required to be advertised under section 15 of that Act, and (g) section 21 (4) of that Act does not have effect, and (h) 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. (4) Subject to this section, the regulations may make provision for or with respect to such matters concerning a licence or certificate of registration as are relevant to the operation of Part 2 of the applied Act. 17A Application fees and Compensation Fund contributions (1) An applicant for a licence or certificate of registration 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 in relation to the application. 18 (Repealed) 19 Certain applications to be refused An application must not be granted unless the applicant is eligible to be granted the licence or certificate of registration concerned (as provided by section 14). 20 Conditions—general (1) A licence or certificate of registration may be granted subject to conditions, including (but not limited to) conditions of the following kind— (a) a condition prohibiting the holder from exercising functions under the licence or certificate of registration otherwise than as an employee of a licensee whose licence does not contain such a condition, (b) a condition requiring the holder to undertake or complete a specified course of studies within a specified period of time, (c) a condition requiring the holder to undertake by way of professional development specified further education or training during the term of the licence or certificate of registration, (d) a condition prohibiting the holder— (i) from exercising specified functions, or (ii) from exercising functions in relation to specified activities, or (iii) from exercising functions other than specified functions, or (iv) from exercising functions except in relation to specified activities. (2) A licence or certificate of registration is subject to the condition that the holder must comply with any continuing professional development requirements issued and notified to the holder by the Secretary from time to time. 21 Special condition requiring auctioneers to be accredited (1) Every real estate agent's licence and stock and station agent's licence is subject to the condition that the holder of the licence must not act as an auctioneer unless the licensee is accredited as an auctioneer under this section. (2) The Secretary may accredit the holder of a real estate agent's licence or stock and station agent's licence as an auctioneer if the Secretary is satisfied that the holder has such qualifications in connection with the conduct of auctions and the functions of auctioneers as the Secretary may approve from time to time by order published on the NSW legislation website. (3) Without limiting the Secretary's power to approve qualifications, the Secretary 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. 22 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 in the Gazette. (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. 23, 24 (Repealed) 25 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 the nominated term or 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. 25A Time period for restoration of licence (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. 26 Effect of applying for restoration of expired licence (1)–(5) (Repealed) (6) If an application for the restoration of an expired licence is duly made, anything done by the holder of the expired licence between its expiry and the determination of the application for restoration (whether the application is granted or refused) is taken to have been done as the holder of a licence, except for the purposes of sections 8 (1), 9 (1) and 10. 26A Duration of certificate of registration (1) The term of duration for a certificate of registration is 4 years. (2) (Repealed) (3) The suspension of a certificate of registration does not affect the term of the certificate. 26AA Exceptional circumstances for extending or restoring certificates of registration beyond 4 years (1) The Secretary may, if satisfied exceptional circumstances exist— (a) grant a certificate of registration for a term longer than 4 years, or (b) grant an extension to an existing certificate of registration of up to 12 months so that the certificate has a term longer than 4 years, or (c) grant a restoration to a certificate of registration for an additional 12 months so that the certificate has a term longer than 4 years. (2) A grant under subsection (1) may be unconditional or subject to conditions. (3) The Secretary may require the holder, or former holder, of a certificate of registration to do the following— (a) make an application for a grant under subsection (1), (b) make the application within the time required by the Secretary, (c) make the application in a form approved by the Secretary, (d) pay the fee prescribed by the regulations for the application. (4) An application for the restoration of a certificate of registration must be made— (a) within 3 months of the expiry of the certificate of registration, or (b) within the further period determined by the Secretary on the application of the person seeking the restoration. (5) A certificate of registration that has been surrendered or cancelled must not be restored. (6) For an application for a restoration of a certificate of registration— (a) anything done by the holder of the expired certificate of registration between its expiry and the determination of the application is taken to have been done as the holder of a certificate of registration, and (b) if the application is granted—the certificate of registration is taken to have been restored from the day on which the certificate of registration expired. (7) In this section— exceptional circumstances includes circumstances prescribed by the regulations. 26B Time period for application for further certificate of registration (1) An application for a certificate of registration may not be made within 1 year of the expiry or cancellation of a certificate of registration previously held by the applicant. (2) A certificate of registration may not be renewed or restored. 27 Administrative review by NCAT A person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions of the Secretary— (a) a decision refusing to grant a licence or certificate of registration to the person (including such a decision pursuant to an application for the reissue or restoration of a licence or certificate of registration), (b) a decision to impose a condition on a licence or certificate of registration of the person. Part 3 General conduct of licensees and registered persons Division 1 Place and name of business 28 Registered office and address (1) A licensee must have a registered office within New South Wales. (2) A licensee who carries on the business of an agent pursuant to a licence or other authorisation under the laws of another State at an office (the interstate office) that is within 50 kilometres of New South Wales may have the licensee's registered office at the interstate office (even though it is not in New South Wales). The powers of an authorised officer under this Act may be exercised at the interstate office. (3) The address specified in an application for a licence as the address at which the applicant proposes to carry on business (or, in the case of a licensee carrying on business at more than one place, the address specified in the application as the licensee's principal place of business) is taken to be the registered office of the licensee. (4) Notice of any change in the location of the registered office must be lodged by the licensee with the Secretary within the time prescribed by the regulations. Maximum penalty—50 penalty units. 29 Display of name at registered office (1) A licensee must display legibly and conspicuously outside the licensee's registered office and any other place at which the licensee's business as a licensee is carried on— (a) the licensee's name and description as a licensee, and (b) a description of the kind of licence or licences held by the licensee. (2) In addition, a licensee that is a corporation must display legibly and conspicuously— (a) outside the corporation's registered office, the name of the person in charge of the corporation's registered office, and (b) outside any other place at which the business of the corporation is carried on, the name of the person in charge at that place. (3) A person must not display or exhibit outside or near the person's office, house or place of business any sign or other matter that indicates or implies that the office, house or place of business is that of a person licensed as a kind of agent under this Act unless the person is licensed as an agent of that kind. Maximum penalty—50 penalty units. 30 Business names (1) A licensee must not, either alone or together with other persons, carry on business as a licensee under a name or advertise or hold out that the licensee carries on business as a licensee under a name unless— (a) the name consists of the name of the licensee and the name of each other person, if any, with whom the licensee is carrying on, or advertising or holding out that the licensee is carrying on, business as a licensee, or (b) the name is a business name registered under the Business Names Registration Act 2011 of the Commonwealth in relation to the licensee and each other person, if any, with whom the licensee is carrying on, or advertising or holding out that the licensee is carrying on, business as a licensee. Maximum penalty—50 penalty units. (2) The name of a licensee (other than a corporation) consists of the licensee's full name, or the licensee's surname (or family name) together with— (a) the licensee's other name or names, or (b) the initial or initials of the licensee's other name or names, or (c) a combination of one or more of the licensee's other name or names and the initial or initials of the licensee's remaining other name or names, or (d) the other name or names by which the licensee is commonly known or the initial or initials by which the licensee is commonly known or any combination of one or more of those names or initials. (3) The name of a licensee that is a corporation consists of the corporate name of the corporation. (4) The Secretary may, by notice in writing to a licensee, direct that the licensee must not carry on business under a specified business name, being a name that— (a) is the same as, or is a name closely resembling, the name under which a person who is a disqualified person or whose licence has been cancelled under or in pursuance of this Act was carrying on business immediately before the person became a disqualified person or the person's licence was cancelled, or (b) implies or is capable of being construed as implying that the licensee is the successor in the business, or in any way interested or concerned in continuing the business as a licensee, of a person who is a disqualified person or whose licence has been cancelled under or in pursuance of this Act, or (c) is, in the opinion of the Secretary and in the circumstances of any particular case, undesirable as being contrary to the public interest. (5) A licensee must not contravene a direction under subsection (4). Maximum penalty—50 penalty units. (6) The provisions of this section are 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 31 Holder of class 1 licence to be in charge of business (1) An individual who carries on business under a licence other than a class 1 licence must employ an individual (who holds a class 1 licence of a kind that would authorise the employed individual to carry on that business) to be in charge of that business. (2) A corporation that holds a corporation licence must employ an individual (who holds a class 1 licence of a kind that would authorise the individual to carry on that business) to be in charge of that business. (3) An individual or corporation that employs the holder of a class 1 licence in accordance with this section must notify the Secretary of the following within 5 business days— (a) the name and licence number of the holder, (b) the address of each place of business at which the holder will discharge the holder's duties as a licensee in charge of the business. (4) The holder of a class 1 licence who is employed in accordance with this section to be in charge of a business must not exercise functions or provide services on behalf of 2 or more licensees (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. 32 Duty of licensee and person in charge to properly supervise business (1) A licensee must properly supervise the business carried on by the licensee. (2) A licensee employed by another licensee (the principal licensee) as the person in charge of business at a place of business of the principal licensee must properly supervise the business of the principal licensee carried on at that place. (3) The requirement to properly supervise the conduct of business includes the following requirements— (a) a requirement to properly supervise persons 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. (4) 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. (5) A reference in this section to a person who is engaged in a business carried on by a licensee is a reference to a person— (a) who is engaged in the business as an employee of the licensee, or (b) who is engaged by the licensee, other than as an employee of the licensee, to provide services in the course of the business, or (c) whose services are provided to the licensee in the course of the business, other than as an employee of the licensee, under an arrangement entered into by the licensee with another person. Maximum penalty— (a) 200 penalty units in the case of a corporation, or (b) 100 penalty units in any other case. 33 Licensee not to share commission with certain persons (1) A licensee must not enter into an arrangement with or act in conjunction with a person that the licensee knows to be an unlicensed person (other than an employee in the licensee's business as a licensee) whereby the unlicensed person is entitled to a share of the commission, fee, gain or reward payable to the licensee in respect of any transaction by or with him or her as a licensee or generally. Maximum penalty— (a) 100 penalty units in the case of a corporation, or (b) 50 penalty units in any other case. (2) In this section— unlicensed person means a person who is not licensed under this Act or a corresponding Act. 34 Non-commercial subagency agreements to be in writing (1) An agreement between licensees to share any commission, fee, gain or reward paid or payable to a licensee in respect of any services performed by him or her as a licensee is unenforceable unless the agreement is in writing, is signed by the licensees and contains such terms (if any) as may be prescribed by the regulations. (2) Any provision in, or applying to, such an agreement and purporting to exclude, modify or restrict the operation of the terms (if any) required by this section to be contained in the agreement has no force or effect. (3) A licensee who enters into an agreement a provision of which is unenforceable because of this section is guilty of an offence. Maximum penalty—50 penalty units. (4) This section does not apply to— (a) an agr