Queensland: Agents Financial Administration Act 2014 (Qld)

Agents Financial Administration Act 2014 An Act to provide for the administration of trust accounts held by agents regulated under the Debt Collectors (Field Agents and Collection Agents) Act 2014, the Motor Dealers and Chattel Auctioneers Act 2014 and the Property Occupations Act 2014, to establish a claim fund to compensate persons in particular circumstances for financial loss arising from dealings with agents, and for related purposes Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Agents Financial Administration Act 2014. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Act binds all persons (1) This Act binds all persons, including the State, and, so far as the legislative power of Parliament permits, the Commonwealth and the other States. (2) Nothing in this Act makes the State, the Commonwealth or any other State liable to be prosecuted for an offence. 4 Exemption—public officials (1) This Act does not apply to a prescribed officer for trust moneys for which the prescribed officer is responsible, if another Act makes provision for the way the prescribed officer is required to deal with moneys held by the officer in trust. (2) In this section— prescribed officer means— (a) an accountable officer under the Financial Accountability Act 2009; or (b) a public service officer. 5 Relationship with Fair Trading Inspectors Act 2014 (1) The Fair Trading Inspectors Act 2014 (the FTI Act) enacts common provisions for this Act and particular other Acts about fair trading. (2) Unless this Act otherwise provides in relation to the FTI Act, the powers that an inspector has under that Act are in addition to and do not limit any powers the inspector has under this Act. Division 2 Object 6 Main object (1) The main object of this Act is to protect consumers from financial loss in dealings with agents regulated under an Agents Act. (2) The object is to be achieved mainly by— (a) regulating the way agents establish, manage and audit trust accounts; and (b) establishing a claim fund to compensate persons in particular circumstances for financial loss arising from dealings with agents; and (c) promoting administrative efficiency for claims made against the claim fund. Division 3 Interpretation 7 Definitions The dictionary in schedule 1 defines particular words used in this Act. 8 Meaning of agent An agent is a person who is either or both of the following— (a) a licensee; (b) a collection agent. Part 2 Trust accounts Division 1 Opening and keeping trust accounts 9 Who may open trust account A person must not open an account purporting to be a general trust account or special trust account under this part unless the person is a principal agent. Maximum penalty—200 penalty units. 10 Application and grant of authority to open a trust account—collection agents (1) Before opening a trust account under this part, a collection agent must apply, in the approved form, to the chief executive for an authority to open the account. Maximum penalty—200 penalty units. (2) The application must be accompanied by the amount required for obtaining a criminal history report about the collection agent under the Debt Collectors (Field Agents and Collection Agents) Act 2014, section 106. (3) The chief executive must decide to grant the authority if the chief executive considers the applicant is a suitable person to open a trust account. (4) In considering whether an applicant is a suitable person to open a trust account, the chief executive must have regard to the matters relating to the suitability of the applicant to perform a debt collection activity under the Debt Collectors (Field Agents and Collection Agents) Act 2014, as stated in section 102 or 103 of that Act. (5) The chief executive must— (a) give the applicant written notice of the chief executive's decision about the application; and (b) if the decision is to refuse the application—give the applicant an information notice complying with the QCAT Act, section 157(2) for the decision. (6) If the chief executive decides to refuse the application, the applicant can not make another application under this section for 3 months after the day the chief executive gives the applicant the information notice under subsection (5)(b) for the decision. (7) However, subsection (6) does not apply if— (a) the applicant is a corporation; and (b) the applicant satisfies the chief executive that, because of a genuine sale— (i) no person who was a shareholder of, or held a beneficial interest in, the corporation when the refused application was made is a shareholder of, or holds a beneficial interest in, the applicant corporation; and (ii) no person who was in a position to control or influence the affairs of the corporation when the refused application was made is in a position to control or influence the affairs of the applicant corporation. 11 Requirements for opening and keeping trust accounts (1) An agent must not open a general trust account or special trust account at a place other than the office or branch of an approved financial institution within the State. Maximum penalty—200 penalty units. Note— A special trust account is a trust account created under section 17 in which an amount is held for investment at the direction of both parties to a sale. (2) Before opening a general trust account or special trust account the agent must give the manager or other officer in charge of the financial institution's office or branch— (a) if the person is a licensee—a copy of the licensee's licence; or (b) if the person is a collection agent—a copy of the collection agent's authority to open the account granted under section 10. Maximum penalty—200 penalty units. (3) Subsection (4) applies if— (a) a collection agent who is not a licensee keeps a general trust account at a financial institution under this part; and (b) the collection agent becomes a licensee; and (c) the collection agent intends to continue using the agent's existing general trust account for transactions carried out under the licence. (4) The agent must, within 7 days after receiving the licence, give the manager or other officer in charge of the financial institution's office or branch a copy of the licence. Maximum penalty—200 penalty units. 12 Account's name (1) An agent opening a general trust account must ensure the account's name includes the words 'trust account'. Maximum penalty—200 penalty units. (2) A licensee opening a special trust account must ensure the account's name includes the words 'special trust account'. Maximum penalty—200 penalty units. 13 Notice of account's opening, closing or name change (1) This section applies if an agent does any of the following (each an event)— (a) opens a general trust account; (b) if the agent is a property agent—opens a special trust account; (c) changes the name of a general trust account or special trust account; (d) closes a general trust account or special trust account. (2) The agent must give the chief executive written notice under subsection (3) of the happening of the event within 2 months of its happening. Maximum penalty—200 penalty units. (3) The written notice must state— (a) whether the account is a general trust account or special trust account; and (b) the name of the financial institution where the account is or was kept; and (c) the account name; and (d) the identifying number of the financial institution; and Note— This is commonly referred to as the bank state branch number (BSB). (e) the account number. 14 Agreements with financial institutions (1) The chief executive may enter into an agreement for the State with a financial institution about the keeping of general trust accounts by agents. (2) The chief executive may enter into an agreement only with the Minister's approval. (3) The agreement may provide for the following things— (a) payment of interest on the whole or part of amounts held in agents' general trust accounts to the consolidated fund; (b) informing the chief executive of amounts held in agents' general trust accounts; (c) auditing agents' general trust accounts; (d) other things concerning agents' general trust accounts. (4) A financial institution may pay interest to the consolidated fund under an agreement. Division 2 Payments to trust accounts 15 Application of ss 16 and 17 (1) Sections 16 and 17 apply if an amount is received by an agent— (a) for a transaction; or (b) with a written direction for its use. Example of paragraph (b)— an amount received by a property agent with a written direction to use it for advertising or marketing by the property agent or another person (2) In this section— amount, received by an agent for a transaction— (a) includes deposit and purchase monies for the transaction; but (b) does not include an amount payable to the agent for the transaction in refund of an expense the agent was authorised to incur and did incur and for which the agent holds a receipt. 16 Dealing with amount on receipt An agent must, before the end of the first business day after receiving the amount— (a) pay it to the agent's general trust account; or Example— A licensee who collects an amount of rent for a property owner must pay the amount to the licensee's general trust account before the money can be paid from the account under section 22. (b) if section 17(1) applies, invest it under section 17(2). Maximum penalty—200 penalty units or 2 years imprisonment. 17 Investments—property agents (1) A property agent under the Property Occupations Act 2014 may invest an amount under subsection (2) if— (a) the agent receives the amount for a sale; and (b) the sale is to be completed on a day that is— (i) stated in the contract or ascertainable on the day the contract is entered into; and (ii) more than 60 days after the amount is received; and (c) the amount is received with a direction from all parties to the sale that it be invested. (2) The agent must pay the amount as required by the direction to a special trust account with a branch of a financial institution within the State operated for the investment of the amount. Maximum penalty for subsection (2)—200 penalty units or 2 years imprisonment. 18 No other payments to trust account (1) An agent must not pay to a trust account an amount other than an amount that must be paid to the account under section 16 or 17. Maximum penalty—200 penalty units or 1 year's imprisonment. (2) However, if the agent receives an amount consisting of trust money and other money (the non-trust money) that can not be divided, the agent must— (a) pay the whole amount to the agent's general trust account; and (b) draw the non-trust money from the account within 14 days after the money becomes available for drawing. Example of amount consisting of trust money and non-trust money— A property agent receives a single cheque for rent and services provided by the property agent, including, for example, television rental. Maximum penalty—200 penalty units or 1 year's imprisonment. 19 Multiple trust accounts not required (1) A licensee who holds more than 1 licence is not required to keep a general trust account for each licence. (2) Also, a collection agent who holds 1 or more licenses is only required to keep 1 general trust account for activities performed as a collection agent and activities performed under the agent's licence. 20 Trust money not available to agent's creditors An amount paid, or required to be paid, to a trust account under this division can not be— (a) used for payment of the debt of a creditor of an agent; or (b) attached or taken in execution under a court order or process by a creditor. Division 3 Payments from trust accounts 21 When payments may be made from trust accounts (1) An amount paid to a trust account must be kept in the account until it is paid out under this Act. Maximum penalty—200 penalty units or 2 years imprisonment. (2) An amount may be paid from a trust account only in a way permitted under this Act. Maximum penalty—200 penalty units or 2 years imprisonment. 22 Permitted drawings from trust accounts (1) An agent may draw an amount from the agent's trust account to pay the agent's transaction fee or transaction expenses for a transaction only if— (a) the amount is drawn against the transaction fund for the transaction; and (b) the agent is authorised to draw the amount under this section. Maximum penalty—200 penalty units or 2 years imprisonment. (2) The agent is authorised to draw an amount from the transaction fund to pay a transaction expense when the expense becomes payable. (3) After the transaction is finalised, the agent is authorised— (a) to draw an amount from the transaction fund to pay the person entitled to the amount, or someone else in accordance with the person's written direction, that is equal to the difference between— (i) the balance of the transaction fund; and (ii) the total of the agent's transaction fee and any outstanding transaction expense; and (b) after the amount, if any, mentioned in paragraph (a) has been paid—to draw the agent's transaction fee from the transaction fund. Example of when a transaction is finalised— the settlement of a contract for the sale of property or the termination of the contract (4) For subsection (3)(a) or (b), if a dispute about the transaction fund arises, the transaction is not taken to be finalised until the agent is authorised to pay out the transaction fund under division 5. (5) The agent must pay an amount mentioned in subsection (3)(a) to the person entitled to it, or someone else in accordance with the person's written direction— (a) if the person asks, in writing, for the balance—within 14 days after receiving the request; or (b) if the person has not asked, in writing, for the balance—within 42 days after the transaction is finalised. Maximum penalty—200 penalty units or 2 years imprisonment. (6) In this section— transaction expense means an expense an agent is authorised to incur in connection with the performance of the agent's activities for a transaction. transaction fee means fees, charges and commission payable for the performance of an agent's activities for a transaction. transaction fund means an amount held in an agent's trust account for a transaction. Division 4 Other trust account obligations 23 Accounting to clients (1) An agent must account as required under this section to a client who appoints the agent to perform an activity, for all amounts received for a transaction, including an amount mentioned in subsection (2)(c). Maximum penalty—200 penalty units or 2 years imprisonment. (2) The account must be in writing and state— (a) the amounts received for the transaction; and (b) how the amounts were or are to be paid out; and (c) the source and the amount of any rebate, discount, commission or benefit the agent received— (i) for any expenses the agent incurred for the client in connection with the performance of a service; or (ii) for referring the client to someone else for services relating to the transaction. (3) The agent must give the client the account— (a) if the client asks, in writing, for the account—within 14 days after receiving the request; or (b) if the client has not asked, in writing, for the account—within 42 days after the transaction is finalised. 24 Duties of financial institution managers (1) The manager or principal officer of an office or branch of a financial institution where trust money has been deposited, whether to a trust account or another account, must— (a) allow an inspector, on written demand signed by the inspector, to inspect and copy documents relating to the account; and (b) immediately an agent's trust account is overdrawn, inform the chief executive of that fact; and (c) immediately there is insufficient money in an agent's trust account to meet a cheque drawn on the account, inform the chief executive of— (i) the amount for which the cheque is drawn; and (ii) the amount in the account. Maximum penalty—200 penalty units or 1 year's imprisonment. (2) In this section— agent includes— (a) a former agent; and (b) a person who is not licensed, but who acts as a licensee. trust money includes— (a) an amount that, under section 16, is required to be deposited to an agent's trust account; and (b) an instrument for the payment of an amount mentioned in paragraph (a) if the instrument may be paid into a financial institution; and (c) a security for an amount mentioned in paragraph (a) if title to the security is transferable by delivery. Division 5 Payments from trust accounts if dispute arises or is likely to arise 25 Application of div 5 (1) This division applies if— (a) an agent holds a transaction fund for a transaction under section 22; and (b) before the transaction fund is paid out under section 22, the agent becomes aware of a dispute, or considers a dispute may arise, between the parties to the transaction about entitlement to the transaction fund or part of the fund (the amount in dispute). (2) In this section— party, to the transaction, does not include an entity acting for a party to the transaction. 26 When amount in dispute may be paid (1) This section applies if the agent considers that a party to the transaction is entitled to the amount in dispute. (2) The agent may give all parties to the transaction a written notice to the following effect— (a) the agent considers that a stated party is entitled to the amount in dispute; (b) the agent is authorised, under this Act, to pay the amount in dispute to the stated party on or after a stated date (at least 60 days after the notice is given), unless— (i) a proceeding disputing the stated party's entitlement to the amount in dispute is started and the agent is advised of the start of the proceeding; or (ii) all parties to the transaction authorise payment of the amount to the stated party before the stated date. (3) The agent may pay the amount in dispute to the stated person if— (a) after the stated date, the agent is unaware of the start of a proceeding claiming an entitlement to the amount; or (b) on or before the stated date, the agent receives written notice under subsection (2)(b)(ii) authorising payment of the amount to the stated party. (4) The agent is not liable civilly or under an administrative process in relation to the payment of the amount in dispute to the stated party as provided under this section if it is subsequently found that the stated party was not entitled to the amount. (5) To remove any doubt, it is declared that this section— (a) provides a process for the payment of an amount in dispute; and (b) does not decide legal entitlement to the amount or prevent a person legally entitled to the amount recovering it from the person to whom it was paid. (6) Nothing in this section requires the agent to give notice under subsection (2) if the agent decides to retain the amount in dispute until payment of the amount is authorised by all parties to the transaction or entitlement to the amount is decided by a court. 27 Dealing with amount in dispute if not dealt with under s 26 (1) This section applies if the amount in dispute is not dealt with under section 26. (2) The agent must not pay out the amount in dispute unless the agent receives written notice— (a) from all parties to the transaction stating the person who is entitled to the amount; or (b) a proceeding has been started to decide who is entitled to the amount. Maximum penalty—200 penalty units or 2 years imprisonment. 28 Where amount in dispute must be paid if person is entitled under s 27 or proceeding is started (1) This section applies if a person is entitled to the amount in dispute under section 27(2)(a) or a proceeding to decide entitlement to the amount is started. (2) The agent must pay the amount in dispute immediately— (a) if notice under section 27(2)(a) is received—to the person stated to be entitled to the amount or in accordance with the person's direction; or (b) if a proceeding disputing entitlement to the amount is started—to the court in which the proceeding was started. Maximum penalty—200 penalty units or 2 years imprisonment. Part 3 Audit requirements Division 1 Preliminary 29 Definition for pt 3 In this part— auditor means a person who is— (a) registered as an auditor under the Corporations Act; or Note— See the Corporations Act, section 1274AA (Register of disqualified company directors and other officers). (b) a member of CPA Australia who is entitled to use the letters 'CPA' or 'FCPA'; or (c) a member of the Institute of Chartered Accountants in Australia who is entitled to use the letters 'CA' or 'FCA'; or (d) a member of the Institute of Public Accountants who is entitled to use the letters 'MIPA' or 'FIPA'. Division 2 Provisions about auditors 30 Agent must appoint auditor and notify chief executive (1) An agent must, within 1 month after opening a trust account, appoint an auditor to audit the trust account kept or to be kept by the agent. Maximum penalty—200 penalty units or 1 year's imprisonment. (2) The agent must, within 1 month after the appointment, give the chief executive— (a) written notice of the auditor's name and address; and (b) evidence the auditor has accepted the appointment. Maximum penalty—200 penalty units. 31 Steps to be taken if auditor's appointment ends (1) If an agent's auditor resigns or the agent ends the auditor's appointment, both the auditor and the agent must immediately notify the chief executive of— (a) the resignation or ending of the appointment; and (b) the reasons for it. (2) An auditor or agent who is required to give the chief executive notice under subsection (1) and fails to give the notice commits an offence. Maximum penalty—200 penalty units. (3) The agent must appoint another auditor and, unless the agent has a reasonable excuse, within 1 month after the resignation or ending of the appointment mentioned in subsection (1) takes effect, give the chief executive— (a) written notice of the auditor's name and address; and (b) evidence the auditor has accepted the appointment. Maximum penalty—200 penalty units. (4) If an agent's auditor dies, the agent must— (a) as soon as practicable after the agent becomes aware of the death, notify the chief executive of the death; and (b) unless the agent has a reasonable excuse, within 1 month after becoming aware of the death, appoint another auditor and give the chief executive— (i) written notice of the auditor's name and address; and (ii) evidence the auditor has accepted the appointment. Maximum penalty—200 penalty units. 32 Chief executive may make information available to supervisory bodies (1) The chief executive may report a matter about an auditor to ASIC or a prescribed entity of which the auditor is a member if the chief executive believes, on reasonable grounds, the auditor— (a) has not audited an agent's trust accounts in accordance with generally accepted standards of professional competency; or (b) has failed to detect or report material irregularities in the operation of an agent's trust accounts; or (c) has not properly performed the auditor's functions under this Act. (2) The chief executive may make information in the chief executive's possession available to the commission or entity for an investigation conducted by the commission or entity. (3) In this section— prescribed entity means CPA Australia, the Institute of Chartered Accountants in Australia or the Institute of Public Accountants. Division 3 Audit of trust accounts 33 Definitions for div 3 In this division— agent includes a person who is an agent at the start of an audit period, even if the person stops being an agent before the end of the audit period. audit month, for an agent, means— (a) if the agent is a licensee— (i) the eighth month after the month in which the licence was first issued to the licensee and the same month in each subsequent year; or (ii) another month stated by the chief executive in a written notice given to the licensee; or Example of paragraph (a)(i)— If a licensee's licence was first issued to the licensee in January, the audit month for the licensee's licence is September. (b) if the agent is a collection agent—the month of June. audit period means— (a) the 12 month period in each year ending on the last day of the audit month; or (b) another period decided by the chief executive, either generally by gazette notice, or by written notice given to an agent. audit report, for an agent, means a report from the agent's auditor under section 40. trust account means a general trust account or a special trust account. 34 What trust accounts must be audited (1) An agent's trust accounts must be audited for each audit period during which the agent carried on business as an agent and operated a trust account. (2) An agent's trust accounts need not be audited for an audit period if the agent gives the chief executive a statutory declaration that the agent did not operate a trust account during the period. 35 Time for audit (1) This section applies to an agent for each audit period for which the agent's trust accounts must be audited. (2) The agent must, within 4 months after the last day of the audit month in each year or the extended period allowed by the chief executive under subsection (3)— (a) have the agent's trust accounts for the last audit period audited by the person's auditor; and (b) file the agent's signed original audit report with the chief executive. Maximum penalty—200 penalty units or 2 years imprisonment. Note— The auditor must give the agent a signed original audit report under section 40 (Audit reports). (3) The chief executive may extend the time mentioned in subsection (2) if the agent or the agent's auditor applies in writing to the chief executive for the extension. (4) The application must state the grounds on which the extension is sought. (5) If the agent is charged with an offence relating to a failure to file an audit report, it does not matter that the contravention happened without the agent's authority or contrary to the agent's instructions. 36 Auditors—functions (1) An auditor has the following functions under this division— (a) to inspect and audit, in each audit period, the trust accounts of each agent by whom the auditor is engaged; (b) to make an audit report for the agent for the audit period; (c) if the agent is an agent for the whole of the audit period—to make 2 unannounced examinations of the agent's trust accounts during the audit period; (d) if the agent is an agent for less than the whole audit period, but more than 6 months of the period—to make 1 unannounced examination of the agent's trust accounts during the audit period. (2) An auditor must not make an unannounced examination of an agent's trust accounts within 2 months after the last day of the audit period or another unannounced examination. 37 Auditor's advice to chief executive An auditor must immediately give written notice to the chief executive if the auditor— (a) can not report that a trust account has been satisfactorily kept under this Act; or (b) finds, on an unannounced examination of an agent's trust accounts, an irregularity relating to an account that ought to be brought to the chief executive's notice. Maximum penalty—200 penalty units or 1 year's imprisonment. 38 Auditor may ask agent to produce other accounts (1) This section applies if an auditor considers, to enable the auditor to decide whether an agent's trust accounts have been satisfactorily kept under this Act, it is necessary— (a) to examine a general account of the agent; or (b) to be given information about the accounts. (2) The auditor may ask the agent to produce the general account or give the information. (3) If the agent refuses, the auditor must immediately give written notice to the chief executive. Maximum penalty for subsection (3)—200 penalty units or 1 year's imprisonment. 39 Audit on ceasing to be principal agent (1) This section applies if— (a) an agent keeps a trust account; and (b) the agent stops being a principal agent. Example— An agent who is a licensee stops being a principal agent if the licensee stops carrying on business under the licensee's licence on the licensee's own behalf. (2) The agent must, within 2 months after the agent stops being a principal agent— (a) have the agent's trust accounts audited by the agent's auditor for the period— (i) starting on the day immediately after the end of the period covered by the last audit of the trust accounts or, if the trust accounts have not previously been audited, the day on which the agent was first required to keep trust accounts; and (ii) ending on the day the person stops being a principal agent; and (b) file the auditor's signed original audit report with the chief executive. Maximum penalty—200 penalty units or 2 years imprisonment. 40 Audit reports (1) An auditor who audits an agent's trust accounts must give the agent an original signed audit report under this section. Maximum penalty—200 penalty units or 1 year's imprisonment. (2) The auditor must include the following in the report— (a) the following details— (i) the auditor's name; (ii) the prescribed entity of which the auditor is a member; (iii) the auditor's membership number issued by the prescribed entity; (b) the audit period for which the report is made; (c) the name and number of each trust account audited; (d) the name of the financial institution, the office or branch of the institution where each trust account was kept and the identifying number of the office or branch; (e) the agent's name; (f) if the agent is an individual who holds a licence—the agent's licence number; (g) for a corporation— (i) if the corporation is a licensee—the corporation's licence number; and (ii) the licence number of each licensee in charge of the corporation's business; and (iii) the name of each agent in charge of the corporation's business during the audit period; (h) if the agent carried on business under a registered business name—the business name and the names of any persons with whom the agent carried on the business; (i) each place where the agent carried on business as an agent; (j) a statement about whether each trust account has been satisfactorily kept under this Act; (k) a statement specifying the day and result of each unannounced examination for the audit period under section 36(1); (l) a statement about whether the auditor has audited the agent's general account; (m) if a trust account has been overdrawn, the following details— (i) the name of the overdrawn account; (ii) the date and amount of each overdraw; (iii) any reason given by the agent for each overdraw; (iv) if an overdraw was corrected, the date of the correction; (n) if a trust creditor's ledger account has been overdrawn, the following details— (i) the name of the trust creditor; (ii) the date and amount of each overdraw; (iii) any reason given by the agent for each overdraw; (iv) if an overdraw was corrected, the date of the correction; (o) a statement about whether, for each month during the audit period— (i) each trust account cash book was reconciled with the bank balance and trust ledger; and (ii) an analysis was made showing the name of each person for whom an amount was held and the amount held for each person; (p) the serial numbers of the trust receipts used during the audit period and any unused trust receipts produced to the auditor; (q) if an amount has been held in trust for more than 3 months by the agent at the last day of the audit period, the particulars for each amount, including— (i) any reason given by the agent for holding the amount for more than 3 months; and (ii) whether the amounts have been dispersed before the day the report is given; (r) a statement that each trust account cash book has been reconciled with the bank balance of the trust account at the last day of the audit period; (s) a copy of the reconciliation of the trust account cash book and the bank balance of the trust account at the last day of the audit period containing the particulars prescribed under a regulation for this paragraph; (t) if the agent used software in connection with keeping the trust account—the name and version number of the software; (u) a statement about anything else about a trust account audited that the auditor considers should be reported to the chief executive. Part 4 Directions about trust accounts and appointing receivers and special investigators Division 1 Definitions 41 Definitions for pt 4 In this part— account means— (a) a trust account in an agent's name with a financial institution; or (b) an account in the agent's name or in which the agent has an interest with a financial institution; or (c) another account to which trust money is deposited. agent includes a former agent and the personal representative of a deceased agent. defalcation means the stealing, or embezzlement, omitting to account, misappropriation or misapplication of, or another act about, property punishable by imprisonment. money includes— (a) an instrument for the payment of an amount if the instrument may be paid to a financial institution; and (b) security for money if title to the security is transferable by delivery. trust property, for an agent— (a) means— (i) property received by the agent in trust that has not been given to the person entitled to it or someone else under the person's direction or according to law; or (ii) property that, except for the appointment of a receiver, would be receivable for another person by the agent in trust after the receiver's appointment; or (iii) trust money; and (b) includes computer hardware, software and discs, ledgers, books of account, vouchers, records, deeds, files and other documents used in connection with something mentioned in paragraph (a). Division 2 Giving directions about agents' accounts 42 Chief executive may give directions about agent's accounts in particular cases (1) The chief executive may decide to give a direction under subsection (2) if the chief executive believes, on reasonable grounds— (a) any of the following persons has, or may have, stolen or misappropriated or misapplied trust money— (i) an agent; (ii) the person in charge of an agent's business; (iii) an employee of an agent; or (b) an agent has abandoned the agent's business. (2) The chief executive may direct, by signed writing— (a) if a claim has been made against the fund for the trust money—that all or part of the amount to the credit of a stated account be paid to the chief executive; or (b) that an amount must not be drawn from a stated account other than with the chief executive's written approval; or (c) that a stated account may be operated only under stated conditions. (3) The direction must— (a) be given to each holder of the account and the financial institution where the account is kept; and (b) state the account to which it relates; and (c) if it includes a direction under subsection (2)(c), state the conditions under which the account may be operated. (4) If an amount is paid to the chief executive under subsection (2)(a), the chief executive must pay the amount to the consolidated fund. 43 Account not to be operated unless chief executive allows (1) This section applies if the chief executive gives a direction under section 42(1). (2) After the direction has been given to the holder of the account, and until it is withdrawn, the holder must not sign a cheque or other instrument drawn on the account unless the cheque or other instrument has first been signed by the chief executive or a person authorised by the chief executive to sign the cheque or instrument. Maximum penalty—200 penalty units or 2 years imprisonment. 44 Financial institution must comply with direction (1) After a direction has been given to a financial institution under section 42(2), and until it is withdrawn, the financial institution must not— (a) pay a cheque or other instrument drawn on the account stated in the direction unless the cheque or instrument is also signed by the chief executive; or (b) give effect to another transaction on the account that is not authorised because of the direction. Maximum penalty— (a) for an individual guilty of an offence under chapter 2 of the Criminal Code—200 penalty units or 1 year's imprisonment; or (b) for a corporation—1,000 penalty units. (2) Subsection (1) applies whether or not a copy of the direction has been given to anyone else. (3) For section 42(2)(b), the chief executive's signature on the cheque or other instrument is sufficient evidence of the chief executive's approval to draw an amount from the account to honour the cheque or other instrument. (4) A manager or principal officer in charge of an office or branch of the financial institution where the account is kept, or another officer of the financial institution, must not knowingly contravene this section. Maximum penalty—200 penalty units or 1 year's imprisonment. (5) A person to whom a direction is given does not incur a civil liability to another only because the person complies with the direction. 45 Person may ask QCAT to review chief executive's decision (1) A person who is dissatisfied with a decision of the chief executive made under section 42(1) may apply to QCAT to have the decision reviewed. (2) QCAT can not stay the operation of the decision under the QCAT Act, section 22(3). 46 Withdrawal of direction (1) The chief executive may withdraw a direction given under section 42 at any time. (2) If the direction is withdrawn, the chief executive must immediately give all persons who were given the direction a notice that the direction has been withdrawn. (3) A direction stops having effect when the notice is given. Division 3 Receivers Subdivision 1 Appointment 47 When receiver may be appointed (1) If the chief executive believes, on reasonable grounds, defalcation has, or may have, been committed in relation to an agent's trust account, the chief executive may appoint a receiver if— (a) the agent consents to the appointment; or (b) the chief executive— (i) gives the agent written notice— (A) stating the chief executive proposes to appoint a receiver on the ground that defalcation has, or may have, been committed in relation to the agent's trust account; and (B) outlining the facts and circumstances forming the basis for the ground; and (C) inviting the agent to show, in writing, within a stated time of at least 21 days, why the appointment should not be made; and (ii) after considering any written representations given within the stated time, still considers the ground exists. Note— Under the Judicial Review Act 1991, part 4, a person aggrieved by an administrative decision of the chief executive can ask the chief executive to give a written statement of reasons for the decision, if they are not given. See the Acts Interpretation Act 1954, section 27B (Content of statement of reasons for decision) for what the chief executive must set out in the reasons. (2) The chief executive may immediately appoint a receiver if the chief executive believes, on reasonable grounds, a person can not obtain payment or delivery of trust property held for the person by an agent because of— (a) the agent's mental or physical infirmity; or (b) the agent's death; or (c) the abandonment of the agent's business; or (d) if the agent is a licensee— (i) the agent's disqualification from holding a licence; or (ii) the cancellation or suspension of the agent's licence; or (iii) a refusal to renew the agent's licence; or (iv) the expiry of the agent's licence. 48 Trust property over which receiver may be appointed A receiver may be appointed over trust property— (a) held by an agent; or (b) held by another person for an agent; or (c) recoverable by an agent; or (d) if an agent is dead, that may be recoverable by the agent's personal representative. 49 Who may be appointed (1) The chief executive may appoint a person as a receiver only if satisfied the person is appropriately qualified to perform a receiver's functions. (2) A person may be appointed as a receiver and a special investigator over the same trust property. Note— See section 70 (Appointment of special investigator). 50 How receivers are appointed (1) The chief executive must appoint a receiver by signed notice. (2) The notice must state the trust property (receivership property) over which the receiver is appointed. (3) The appointment takes effect when the notice is signed. (4) The chief executive must give a copy of the notice to the agent and the receiver as soon as practicable after the signing of the notice. (5) If the agent is a corporation, the agent must give notice of the appointment to each person who was an executive officer of the corporation at the time the event giving rise to the appointment happened, unless the agent has a reasonable excuse. Maximum penalty for subsection (5)— (a) for an individual guilty of an offence under chapter 2 of the Criminal Code—100 penalty units; or (b) for a corporation—500 penalty units. Subdivision 2 Receiver's functions and powers 51 Receivers—functions (1) A receiver appointed under this division has the following functions— (a) to take possession of receivership property; (b) to manage receivership property; (c) to receive claims against receivership property; (d) if the agent held receivership property in trust— (i) to identify the person or persons who have the right to it; and (ii) to distribute it under this division; (e) to identify any defalcation that has, or may have, been committed; (f) to report to the chief executive about the receivership. (2) In carrying out its functions, the receiver must comply with parts 2 and 3 as if a reference in those parts to the agent were a reference to the receiver. 52 Requiring information (1) A receiver may ask a person to give the receiver information or documents the receiver reasonably requires about receivership property. (2) The person must give the receiver the information or documents, unless the person has a reasonable excuse. Maximum penalty—100 penalty units. (3) It is a reasonable excuse for a person not to give information or documents to a receiver if doing so might tend to incriminate the person. 53 Possession of receivership property (1) A receiver may take or enter into possession of receivership property. (2) As soon as practicable after taking or entering into possession of receivership property, the receiver must give a receipt for it to the person from whom the property was taken or who held possession of the property. (3) The receiver must allow a person who would be entitled to the receivership property if it were not in the receiver's possession— (a) to inspect it; or (b) if it is a document, to take a copy of it. (4) The receiver must return receivership property the receiver is satisfied is not required for the receivership to the agent or other person who has the right to it. (5) The receiver may take or enter into possession of receivership property under subsection (1) despite a lien or other security over it claimed by another person. (6) However, the taking or entry into possession does not affect the person's claim to the lien or other security against a person other than the receiver. 54 Orders for possession of receivership property (1) This section applies if— (a) a receiver requires a person in possession of receivership property to give possession of it to the receiver; and (b) the person does not comply with the requirement. (2) The receiver may apply to a court having jurisdiction for the recovery of debts up to the amount or value of the receivership property for an order for possession of the property. (3) On the application, the court may make any order it considers appropriate. 55 Enforcing orders (1) This section applies if— (a) a court makes an order under section 54 for possession of receivership property against a person; and (b) the person has been given a copy of the order; and (c) the person has not complied with the order. (2) The court may make an order authorising a police officer, or the receiver or another person and a police officer— (a) to enter stated premises or another place occupied by the person and search for the receivership property; and (b) to seize the receivership property and move it to a place the receiver considers appropriate. (3) The court may also make another order it considers appropriate. 56 Improperly withdrawing, destroying or concealing receivership property A person must not— (a) withdraw an amount or make a payment from an account with intent to defeat a receiver's functions; or (b) destroy, conceal, move from 1 place to another place, give to another or place under another's control receivership property over which a receiver has been appointed. Maximum penalty—200 penalty units or 2 years imprisonment. 57 Dealing with receivership property (1) A receiver may deal with receivership property in the same way as the agent may have lawfully dealt with the property. (2) Without limiting subsection (1), the receiver may do the following— (a) if the agent had no general trust account, open a general trust account; (b) claim or receive a debt owing to the agent in connection with the receivership property; (c) start or defend a proceeding concerning the receivership property for the agent; (d) engage a legal representative or other representative to give advice; (e) engage employees or representatives to help the receiver carry out the receiver's functions; (f) if the agent had power to sell or require the sale of the receivership property, sell or require the sale of the property. 58 Obstructing receivers A person must not obstruct a receiver in the performance of the receiver's functions or the exercise of the receiver's powers under this subdivision. Maximum penalty—200 penalty units or 1 year's imprisonment. Subdivision 3 Distributing receivership property 59 Notice to claimants against receivership property (1) The receiver must give notice to persons who may have a claim against receivership property. (2) The notice may be given— (a) by post; or (b) by newspaper advertisement; or (c) in another way the receiver reasonably thinks will bring the notice to the attention of persons who may have a claim to the receivership property. (3) The notice must state a time, at least 1 month after the notice is given, for particulars and grounds of a claim against the receivership property to be given to the receiver. (4) A claim made by a person (a claimant) against receivership property must state— (a) the event alleged to give rise to the claim; and (b) when the event happened; and (c) if the claimant was not immediately aware that the claimant suffered financial loss because of the event, when the claimant became aware of the financial loss; and (d) all relevant particulars about the event and the financial loss; and (e) the claimant's estimated financial loss. (5) The claim is taken to have been made on the day it is given to the receiver even though the claimant is unable to state all of the particulars mentioned in subsection (4). (6) The receiver may require the claimant to verify the claim, or part of the claim. Example of verification— statutory declaration 60 Access to documents (1) The receiver must give a person who wishes to claim against receivership property reasonable access to documents held by the receiver to allow particulars and grounds of the claim to be given. (2) The receiver must give the access free of charge. 61 Deciding claims (1) The receiver must— (a) consider all claims against receivership property; and (b) prepare a report stating the receiver's opinion about whether each claim is allowable, and reasons for the receiver's opinion (a draft claims report). (2) Before deciding a claim, the receiver must give the following to the agent and each person who has claimed against the receivership property (the parties)— (a) a copy of the draft claims report; (b) a written notice inviting the parties to give the receiver written comments about the draft claims report within 14 days after giving the notice. (3) If the receiver receives comments from a party, the receiver must provide each other party with a copy of the comments and invite the parties to give the receiver any further comments within 14 days after giving the notice. (4) The receiver must have regard to the following when deciding whether to allow claims— (a) the parties' comments given under subsection (3); (b) information or a document given under section 52. (5) The receiver may refuse to allow a person's claim against the receivership property if— (a) the person was given notice under section 59; and (b) particulars and grounds of the claim were not given within the time stated in the notice. (6) The receiver must refuse to allow a person's claim against the receivership property if the receiver is satisfied the person does not have a lawful claim against the property. (7) The receiver must prepare a report (a final claims report) that includes— (a) a copy of the draft claims report; and (b) a copy of the parties' comments given under subsection (3); and (c) the receiver's decision for each claim and reasons for the decision. 62 Payment of claims (1) This section applies if the receiver has— (a) given notice under section 59(1); and (b) complied with section 61. (2) The receiver may pay a claim allowed by the receiver only if the receivership property is enough to pay all claims allowed by the receiver. (3) If the receivership property is not enough to pay all of the allowed claims, the receiver— (a) may pay any part of the property that consists of money to the chief executive; and (b) must give a copy of the final claims report prepared under section 61(7) to the chief executive. (4) Money paid to the chief executive under subsection (3) must be— (a) paid to the consolidated fund; and (b) paid from the claim fund under section 63(3)(b). (5) In this section— claim does not include a claim by the agent. 63 Money not dealt with by receiver (1) This section applies to receivership property consisting of money in the receiver's possession. (2) The receiver must give the money to the chief executive if— (a) the receiver has not dealt with it under this division; and (b) the chief executive, by written notice, asks for it. (3) Money given to the chief executive under subsection (2) must be paid to the consolidated fund and be paid from the claim fund in the following order— (a) to reimburse claims paid from the claim fund in relation to the agent; (b) to pay unsatisfied claims against the claim fund in relation to the agent; (c) to pay the remuneration and costs of a receiver appointed under section 47; (d) to pay the remuneration and costs of a special investigator appointed under section 70; (e) to pay claims by the agent against the money. Subdivision 4 Recovery of receivers' remuneration and costs 64 Recovery of remuneration and costs (1) The following persons are liable to reimburse the chief executive for an amount paid to a receiver, including an amount paid from the fund, for the receiver's remuneration and costs— (a) the agent in relation to whom the receiver was appointed; (b) if the agent is a corporation, the executive officers of the corporation when the event for which the chief executive appointed the receiver happened. (2) If more than 1 person is liable to reimburse the chief executive, the liability of the persons is joint and several. (3) The chief executive may recover an amount liable to be reimbursed under subsection (1) as a debt. (4) Before taking action to recover the amount of the debt, the chief executive must give a letter of demand to each person liable to reimburse the chief executive, requiring the person to pay the amount to the chief executive within 1 month after receiving the letter. Subdivision 5 Ending receivership 65 Ending receiver's appointment A receiver's appointment ends if— (a) the receiver resigns by signed notice given to the chief executive; or (b) the receiver or the agent in relation to whom the receiver was appointed applies to the chief executive to end the appointment and the chief executive approves the application; or (c) the receiver dies; or (d) the chief executive ends the appointment by signed notice given to the receiver. 66 Dealing with receivership property when appointment ends (1) This section applies to receivership property if— (a) the receiver's appointment ends; and (b) the chief executive has not asked for the property under section 63. (2) If, within 14 days after the end of the receiver's appointment, the chief executive appoints another person (the new receiver) to be the receiver in the former receiver's place, the former receiver must— (a) give the receivership property to the new receiver as soon as reasonably practicable; or (b) if the chief executive gives the former receiver a direction about how to deal with the receivership property, comply with the direction. Maximum penalty—200 penalty units or 1 year's imprisonment. (3) If a new receiver is not appointed within the 14 days, the former receiver must give the receivership property to the agent or other person who has the right to it. Maximum penalty—200 penalty units or 1 year's imprisonment. (4) However, the chief executive may direct the former receiver to destroy or give to the chief executive a part of the receivership property consisting of documents if the documents have not been given to the person entitled to them. (5) The former receiver must comply with a direction under subsection (4), unless the former receiver has a reasonable excuse. Maximum penalty for subsection (5)—200 penalty units or 1 year's imprisonment. 67 Returns by receiver (1) A receiver must give the chief executive a report about the receivership when the chief executive directs, containing any information reasonably required by the chief executive. (2) The receiver must also give the chief executive a report when the receiver's appointment ends. (3) The report given under subsection (2) must contain— (a) if a copy of the final claims report prepared under section 61(7) has not already been provided under section 62(3)(b)—a copy of the final claims report; and (b) any other information reasonably required by the chief executive. (4) The receiver is not entitled to be paid for the receivership until reports required under this section are given to the chief executive. Subdivision 6 Miscellaneous 68 Receiver not personal representative To remove any doubt, it is declared that a receiver of a deceased agent, in performing the receiver's functions, is not to be taken to be the agent's personal representative. 69 Receivership property free from execution or attachment Receivership property can not be levied on or taken or attached under a judgment. Division 4 Special investigators 70 Appointment of special investigator (1) The chief executive may, by written notice, appoint a special investigator over an agent's trust account if the chief executive considers the trust account has not been kept as required under this Act. (2) The notice must state— (a) the agent's name and details of the trust account; and (b) the terms on which the special investigator is appointed; and (c) the special investigator's functions and powers. (3) A copy of the notice must be given to the agent. (4) The chief executive may appoint a person as a special investigator only if the chief executive is satisfied the person is appropriately qualified to perform a special investigator's functions. (5) An inspector may be appointed as a special investigator. 71 Special investigators—functions A special investigator appointed under this division may perform any of the following functions stated in the investigator's notice of appointment— (a) inspecting the agent's trust accounts and records that relate to the trust accounts; (b) preparing or constructing incomplete trust account records; (c) performing other accounting tasks to establish the state of the trust account; (d) reporting to the chief executive under section 74. 72 Special investigators—powers (1) The chief executive may, by signed notice, give a special investigator a power that may be given to an inspector under the FTI Act. (2) A special investigator's powers under subsection (1) end when the special investigator's appointment ends. 73 Agent must comply with special investigator's lawful requests (1) The agent over whose trust account the special investigator is appointed must comply with a special investigator's lawful requests, unless the agent has a reasonable excuse. Maximum penalty—200 penalty units or 1 year's imprisonment. (2) The special investigator must advise the chief executive of a failure by the agent to comply with a request. 74 Reports to chief executive (1) A special investigator must report to the chief executive at the time, and in the way, required by the chief executive. (2) However, if the special investigator considers sufficient grounds exist to appoint a receiver, the special investigator must advise the chief executive immediately of the grounds. 75 Recovery of remuneration and costs (1) The following persons are liable to reimburse the chief executive for an amount paid to the special investigator, including an amount paid from the fund, for the investigator's remuneration and costs— (a) the agent over whose trust account the special investigator is appointed; (b) if the agent over whose trust account the special investigator is appointed is a corporation, the executive officers of the corporation when the event for which the chief executive appointed the special investigator happened. (2) If more than 1 person is liable to reimburse the chief executive, the liability of the persons is joint and several. (3) The chief executive may recover an amount liable to be reimbursed under subsection (1) as a debt. (4) Before taking action to recover the amount of the debt, the chief executive must give a letter of demand to each person liable to reimburse the chief executive, requiring the person to pay the amount to the chief executive within 1 month after receiving the letter. 76 Ending special investigator's appointment A special investigator's appointment ends if— (a) the investigator resigns by signed notice given to the chief executive; or (b) the investigator dies; or (c) the investigator's notice of appointment states the appointment ends when an event happens and the event happens; or (d) the chief executive ends the appointment by signed notice given to the investigator. Part 5 Jurisdiction of QCAT 77 Jurisdiction For this Act, QCAT has the following jurisdiction— (a) to hear and decide— (i) claims against the fund referred by the chief executive under section 95(1)(b); and (ii) applications for reimbursement orders under part 8, division 4; (b) to review a decision of the chief executive—