South Australia: Land Agents Act 1994 (SA)

South Australia Land Agents Act 1994 An Act to regulate land agents and their sales representatives and property managers; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Meaning of agent 5 Commissioner to be responsible for administration of Act Part 2—Registration and management of agent's business 6 Agents to be registered 6A Sales representatives to be registered 6AB Property managers to be registered 6B Auctioneers to be registered 7 Application for registration 8 Entitlement to be registered as agent 8A Entitlement to be registered as sales representative 8B Entitlement to be registered as sales representative subject to conditions relating to training and supervision 8BA Entitlement to be registered as property manager 8BB Entitlement to be registered as property manager subject to conditions relating to training and supervision 8C Entitlement to be registered as auctioneer 8D Reviews 8E Power of Commissioner to require photograph and information 9 Duration of registration and annual fee and return 10 Incorporated agent's business to be properly managed and supervised 11 Each of agent's places of business to be properly managed and supervised 11A Regulations relating to proper management and supervision 11B Registration card to be carried or displayed Part 2AA—Suspension or variation of registration in urgent circumstances 11BA Commissioner may suspend or impose conditions on registration in urgent circumstances Part 2A—Cancellation, suspension or variation of registration 11C Commissioner may cancel, suspend or impose conditions on registration Part 3—Trust accounts and indemnity fund Division 1—Preliminary 12 Interpretation of Part 3 Division 2—Trust accounts 13 Receiving and dealing with trust money 14 Withdrawal of money from trust account 15 Payment of interest on trust accounts to Commissioner 16 Appointment of administrator of trust account 17 Appointment of temporary manager 18 Powers of administrator or temporary manager 19 Term of appointment of administrator or temporary manager 20 Review of appointment of administrator or temporary manager 21 Keeping of records 22 Audit of trust accounts 23 Appointment of examiner 24 Obtaining information for purposes of audit or examination 25 ADIs etc to report deficiencies in trust accounts 26 Confidentiality 27 ADIs etc not affected by notice of trust 28 Failing to comply with requirement of administrators etc Division 3—Indemnity fund 29 Indemnity fund 29A Division of indemnity fund into two parts 30 Claims on indemnity fund 31 Limitation of claims 32 Establishment and determination of claims 33 Claims by agents 34 Personal representative may make claim 35 Review of Commissioner's determination 36 Determination, evidence and burden of proof 37 Claimant's entitlement to compensation and interest 38 Rights of Commissioner 39 Insurance in respect of claims against indemnity fund 40 Insufficiency of indemnity fund 41 Accounts and audit Part 4—Discipline 42 Interpretation of Part 4 43 Cause for disciplinary action against agents, sales representatives or property managers 44 Complaints 45 Hearing by Tribunal 46 Participation of assessors in disciplinary proceedings 47 Disciplinary action 48 Contravention of orders Part 5—Miscellaneous 48A Advertisements to include registration number of agent 49 Delegations 50 Agreement with professional organisation 51 Exemptions 52 Register 53 Commissioner and proceedings before Tribunal 54 False or misleading information 55 Statutory declaration 56 Investigations 57 General defence 58 Liability for act or default of officer, employee or agent 60 Continuing offence 61 Prosecutions 62 Evidence 63 Service of documents 64 Annual report 65 Regulations Schedule 2—Transitional provisions 2 Transitional provisions—general 3 Transitional provisions—mortgage financiers Schedule 2A—Special provisions relating to G.C. Growden Pty Ltd 1 Interpretation 2 Entitlement to claim compensation 3 Time within which claim must be made 4 Establishment of claims 5 Entitlement to compensation 6 Payment of compensation 7 Recovery of amounts from other sources 8 Accounts and audit 9 Expiry of Schedule Schedule 3 Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Land Agents Act 1994. 3—Interpretation In this Act, unless the contrary intention appears— agent—see section 4; authorised officer means an authorised officer under the Fair Trading Act 1987; business includes a share of, or interest in, a business or the goodwill of a business, but does not include a share in the capital of a corporation; Commissioner means the Commissioner for Consumer Affairs; dealing with land includes granting or taking a lease or tenancy agreement over land; director of a body corporate includes— (a) a person occupying or acting in the position of director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and (b) any person in accordance with whose directions or instructions the directors or members of the governing body of the body corporate are accustomed to act; indemnity fund means the fund maintained under Part 3; land includes— (a) an interest in land; and (b) an exclusive right (whether deriving from the ownership of a share or interest in a body corporate or partnership or arising in some other way) to the separate occupation of land or a building or part of a building; legal practitioner has the same meaning as in the Legal Practitioners Act 1981; money includes an instrument for the payment of money that may be negotiated by an ADI; mortgage means a legal or equitable mortgage over land; mortgage financing means negotiating or arranging loans secured by mortgage including receiving or dealing with payments under such transactions; property manager means a person who, for or on behalf of an agent— (a) grants leases, tenancy agreements or licence agreements in relation to land (whether or not that land is to be used for residential purposes or for the purposes of a business); or (b) induces or attempts to induce, or makes representations or negotiates with a view to inducing, a person to enter into such leases or agreements; or (c) ensures compliance with the terms and conditions of such leases or agreements; or (d) performs a function of a kind prescribed by regulation for the purposes of this paragraph, whether or not the agent is the owner of the land, but does not include a person who performs a function of a kind excluded by regulation from the ambit of this definition; registered agent includes a person registered as an agent and additionally registered as an auctioneer; registered property manager includes— (a) a person registered as a property manager; or (b) a person registered as a sales representative and additionally registered as a property manager; registered sales representative includes a person registered as a sales representative and additionally registered as an auctioneer; sales representative means a person who, for or on behalf of an agent— (a) acquires or disposes of land or a business (including by conducting an auction); or (b) induces or attempts to induce, or makes representations or negotiates with a view to inducing, a person— (i) to acquire or dispose of land or a business; or (ii) to make an offer to acquire or dispose of land or a business; or (iii) to accept an offer to acquire or dispose of land or a business; or (iv) to enter into a contract for the acquisition or disposal of land or a business; or (c) performs a function of a kind prescribed by regulation for the purposes of this paragraph, whether or not the agent is the owner of the land or business, but does not include a person who performs a function of a kind excluded by regulation from the ambit of this definition; sell includes auction and exchange, and purchase has a corresponding meaning; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013. 4—Meaning of agent (1) A person is an agent for the purposes of this Act if the person carries on a business that consists of or involves— (a) selling or purchasing or otherwise dealing with land or businesses on behalf of others, or conducting negotiations for that purpose; or (b) selling land or businesses on his or her own behalf, or conducting negotiations for that purpose. (2) However, a person does not act as an agent in so far as— (a) the person sells or purchases or otherwise deals with land or businesses on behalf of others, or conducts negotiations for that purpose, in the course of practice as a legal practitioner; or (b) the person sells land or businesses, or conducts negotiations for that purpose, through the instrumentality of an agent; or (c) the person engages in mortgage financing. 5—Commissioner to be responsible for administration of Act The Commissioner is responsible, subject to the control and directions of the Minister, for the administration of this Act. Part 2—Registration and management of agent's business 6—Agents to be registered (1) A person must not carry on business, or hold himself or herself out, as an agent unless registered as an agent under this Act. Maximum penalty: (a) for an offence committed by a natural person— (i) for a first or second offence—$50 000; or (ii) for a third or subsequent offence—$50 000 or 12 months imprisonment or both; or (b) for an offence committed by a body corporate—$250 000. (2) A person required by this Act to be registered as an agent is not entitled to commission or other consideration for services as an agent unless the person— (a) is, at the time of rendering the services, registered as an agent; and (b) is authorised, in writing, to act as an agent by the person for whom the services are rendered or a person authorised to act on behalf of that person. (3) Any commission or other consideration paid or given to a person who is, under subsection (2), not entitled to it may be recovered from the person as a debt. 6A—Sales representatives to be registered (1) A person must not act as a sales representative for an agent unless the person— (a) is registered as an agent under this Act; or (b) is registered as a sales representative under this Act and is acting as an employee engaged by the agent under a contract of service. Maximum penalty: $20 000. (2) For the purposes of subsection (1), a person acts as a sales representative for an agent if the person— (a) is or remains in the service of the agent as a sales representative; or (b) holds himself or herself out as a sales representative for the agent; or (c) performs any of the functions of a sales representative on behalf of the agent. (3) An agent must not engage another person to perform any of the functions of a sales representative in the course of the agent's business unless the other person— (a) is registered as an agent under this Act; or (b) is registered as a sales representative under this Act and is engaged by the agent as an employee under a contract of service. Maximum penalty: $20 000. 6AB—Property managers to be registered (1) A person must not act as a property manager for an agent unless the person— (a) is registered as an agent under this Act; or (b) is registered as a sales representative under this Act, is additionally registered as a property manager and is acting as an employee engaged by the agent under a contract of service; or (c) is registered as a property manager under this Act and is acting as an employee engaged by the agent under a contract of service. Maximum penalty: $20 000. (2) For the purposes of subsection (1), a person acts as a property manager for an agent if the person— (a) is or remains in the service of the agent as a property manager; or (b) holds himself or herself out as a property manager for the agent; or (c) performs any of the functions of a property manager on behalf of the agent. (3) An agent must not engage another person to perform any of the functions of a property manager in the course of the agent's business unless the other person— (a) is registered as an agent under this Act; or (b) is registered as a sales representative under this Act, is additionally registered as a property manager and is engaged by the agent as an employee under a contract of service; or (c) is registered as a property manager under this Act and is engaged by the agent as an employee under a contract of service. Maximum penalty: $20 000. 6B—Auctioneers to be registered (1) A person must not conduct an auction in the course of that person's or some other person's business as an agent, or hold himself or herself out as being authorised to conduct such an auction, unless— (a) the person is registered under this Act as an agent and is additionally registered as an auctioneer or is registered as a sales representative and is additionally registered as an auctioneer; or (b) the auction is conducted through the instrumentality of a person who is registered under this Act as an agent and is additionally registered as an auctioneer or is registered as a sales representative and is additionally registered as an auctioneer. Maximum penalty: $5 000. (2) An agent must not engage another person to conduct an auction in the course of the agent's business unless the other person— (a) is registered under this Act as an agent and is additionally registered as an auctioneer; or (b) is registered under this Act as a sales representative and is additionally registered as an auctioneer and is engaged by the agent as an employee under a contract of service. Maximum penalty: $20 000. 7—Application for registration (1) An application for registration must— (a) be made to the Commissioner in the manner and form approved by the Commissioner; and (b) be accompanied by the fee fixed by regulation. (2) An applicant for registration must provide the Commissioner with such evidence as the Commissioner thinks appropriate as to the identity, age and address of the applicant and any other information required by the Commissioner for the purposes of determining the application. (2a) Proof of registration granted to a natural person will include a registration card that bears a photograph of the person and has been issued to the person by the Commissioner; consequently the Commissioner may require an applicant for registration who is a natural person— (a) to attend at a specified place for the purpose of having the applicant's photograph taken; or (b) to supply the Commissioner with 1 or more photographs of the applicant as specified by the Commissioner. (3) If an applicant for registration has previously failed to pay a fee or penalty that became payable under this Act, the Commissioner may require the applicant to pay the whole or a specified part of the fee or penalty. (4) The Commissioner may, by notice in writing, require an applicant for registration, within a time fixed by the notice (which may not be less than 28 days after service of the notice), to comply with any requirement under this section to the Commissioner's satisfaction. (5) If the applicant fails to comply with the notice under subsection (4), the Commissioner may, without further notice, refuse the application but keep the fee that accompanied the application. 8—Entitlement to be registered as agent (1) A natural person is entitled to be registered as an agent if the person— (a) has— (i) the qualifications required by regulation; or (ii) subject to the regulations, the qualifications that the Commissioner considers appropriate; and (b) has not— (i) been convicted of an indictable offence of dishonesty; or (ii) during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; and (c) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and (d) is not an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; and (e) has not, during the period of five years preceding the application for registration, been a director of a body corporate wound up for the benefit of creditors— (i) when the body was being so wound up; or (ii) within the period of six months preceding the commencement of the winding up; and (f) is a fit and proper person to be registered as an agent. (2) A body corporate is entitled to be registered as an agent if— (a) the body corporate— (i) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and (ii) is not being wound up and is not under official management or in receivership; and (b) no director of the body corporate— (i) has— (A) been convicted of an indictable offence of dishonesty; or (B) during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; or (ii) is suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; or (iii) has, during the period of five years preceding the application for registration, been a director of a body corporate wound up for the benefit of creditors— (A) when the body was being so wound up; or (B) within the period of six months preceding the commencement of the winding up; and (c) each director of the body corporate is a fit and proper person to be the director of a body that is registered as an agent. 8A—Entitlement to be registered as sales representative A natural person is entitled to be registered as a sales representative if the person— (a) has— (i) the qualifications required by regulation; or (ii) subject to the regulations, the qualifications that the Commissioner considers appropriate; and (b) has not— (i) been convicted of an indictable offence of dishonesty; or (ii) during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; and (c) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and (d) is a fit and proper person to be registered as a sales representative. 8B—Entitlement to be registered as sales representative subject to conditions relating to training and supervision (1) Despite section 8A, a natural person who does not have the qualifications required by that section, but would otherwise be entitled to be registered as a sales representative, is entitled to be registered as a sales representative if— (a) the registration is made subject to conditions considered appropriate by the Commissioner relating to training to be undertaken by the person for the purpose of qualifying for unconditional registration as a sales representative; and (b) the Commissioner does not consider that such registration should be refused because of previous failure by the applicant to comply with a condition referred to in paragraph (a). (2) The Commissioner may, on application by the person and payment of the prescribed fee, or on the Commissioner's own initiative, by written notice, vary or revoke conditions of a person's registration under this section. (3) An agent who employs as a sales representative a person registered under this section must ensure that the person is properly supervised in that employment. Maximum penalty: $10 000. (4) Without limiting the effect of subsection (3), the regulations may provide that a sales representative will not be taken to be properly supervised for the purposes of that subsection unless certain practices specified in the regulations are followed. (5) The Commissioner may, by written notice, cancel the registration of a person registered under this section if the Commissioner is satisfied that the person has, without reasonable excuse, failed to comply with a condition of the registration. 8BA—Entitlement to be registered as property manager A natural person is entitled to be registered as a property manager if— (a) the person is registered as an agent under this Act; or (b) the person— (i) is registered as a sales representative under this Act; and (ii) has— (A) the qualifications required by regulation; or (B) subject to the regulations, the qualifications that the Commissioner considers appropriate; or (c) the person— (i) has— (A) the qualifications required by regulation; or (B) subject to the regulations, the qualifications that the Commissioner considers appropriate; and (ii) has not— (A) been convicted of an indictable offence of dishonesty; or (B) during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; and (iii) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and (iv) is a fit and proper person to be registered as a property manager. 8BB—Entitlement to be registered as property manager subject to conditions relating to training and supervision (1) Despite section 8BA, a natural person who does not have the qualifications required by that section, but would otherwise be entitled to be registered as a property manager, is entitled to be registered as a property manager if— (a) the registration is made subject to conditions considered appropriate by the Commissioner relating to training to be undertaken by the person for the purpose of qualifying for unconditional registration as a property manager; and (b) the Commissioner does not consider that such registration should be refused because of previous failure by the applicant to comply with a condition referred to in paragraph (a). (2) The Commissioner may, on application by the person and payment of the prescribed fee, or on the Commissioner's own initiative, by written notice, vary or revoke conditions of a person's registration under this section. (3) An agent who employs as a property manager a person registered under this section must ensure that the person is properly supervised in that employment. Maximum penalty: $10 000. (4) Without limiting the effect of subsection (3), the regulations may provide that a property manager will not be taken to be properly supervised for the purposes of that subsection unless certain practices specified in the regulations are followed. (5) The Commissioner may, by written notice, cancel the registration of a person registered under this section if the Commissioner is satisfied that the person has, without reasonable excuse, failed to comply with a condition of the registration. 8C—Entitlement to be registered as auctioneer A natural person is entitled to be registered as an auctioneer if the person— (a) is registered as an agent or sales representative under this Act; and (b) has— (i) the qualifications required by regulation; or (ii) subject to the regulations, the qualifications that the Commissioner considers appropriate. 8D—Reviews (1) A person whose application for registration has been refused by the Commissioner may seek a review of the Commissioner's decision by the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013. (2) Subject to subsection (4), an application for review may be made to the Tribunal within 1 month after the making of the Commissioner's decision. (3) The Commissioner must, if so required by the person, state in writing the reasons for the Commissioner's decision. (4) If the reasons of the Commissioner are not given in writing at the time of the making of the Commissioner's decision and the person (within 1 month of the making of the decision) requires the Commissioner to state the reasons in writing, the time for making an application for review runs from the time at which the person receives the written statement of those reasons. 8E—Power of Commissioner to require photograph and information The Commissioner may, by notice in writing, require a natural person who is registered under this Act, within a time fixed by the notice (which may not be less than 28 days after service of the notice)— (a) at least once in every 10 years— (i) to attend at a specified place for the purpose of having the person's photograph taken; or (ii) to supply the Commissioner with 1 or more photographs of the person as specified by the Commissioner; and (b) not more than once in each year—to provide the Commissioner with such evidence as the Commissioner thinks appropriate as to the identity, age and address of the person. 9—Duration of registration and annual fee and return (1) A person's registration remains in force (except for any period for which it is suspended) until— (a) the registration is surrendered or cancelled; or (b) the person dies or, in the case of a body corporate, is dissolved. (2) A registered person must, each year not later than the date fixed by regulation— (a) pay to the Commissioner the fee fixed by regulation; and (b) lodge with the Commissioner a return in the manner and form required by the Commissioner. (3) Where a person fails to pay the annual fee or lodge the annual return in accordance with subsection (2), the Commissioner may, by notice in writing, require the person to make good the default. (4) Where the person fails to comply with the notice within 28 days after service of the notice, the person's registration is cancelled. (5) The Commissioner must notify the person in writing of the cancellation of the person's registration. (6) A registered person may surrender registration. (7) In this section— registered person includes a person whose registration has been suspended. 10—Incorporated agent's business to be properly managed and supervised A registered agent that is a body corporate must ensure that the agent's business is properly managed and supervised by a registered agent who is a natural person. Maximum penalty: $20 000. 11—Each of agent's places of business to be properly managed and supervised A registered agent must ensure that each place of business of the agent is properly managed and supervised by a registered agent who is a natural person or, in accordance with the regulations, by some other natural person nominated in writing to the Commissioner. Maximum penalty: $20 000. 11A—Regulations relating to proper management and supervision Without limiting the effect of section 10 or 11, the regulations may provide that a registered agent will not be taken to properly manage and supervise a business or place of business for the purposes of section 10 or 11 unless the agent follows practices specified in the regulations. 11B—Registration card to be carried or displayed A natural person who is registered under this Act must, at all times when performing functions as an agent, sales representative or property manager, carry the registration card issued to the person by the Commissioner and produce it forthwith if requested to do so by— (a) an authorised officer; or (b) a person with whom the person has dealings as an agent, sales representative or property manager. Maximum penalty: $1 250. Expiation fee: $160. Part 2AA—Suspension or variation of registration in urgent circumstances 11BA—Commissioner may suspend or impose conditions on registration in urgent circumstances (1) If the Commissioner is of the opinion that— (a) there are reasonable grounds to believe that a registered agent, registered sales representative, registered auctioneer or registered property manager has engaged or is engaging in conduct that constitutes grounds for disciplinary action under Part 4; and (b) it is likely that the agent, sales representative, auctioneer or property manager will continue to engage in that conduct; and (c) there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of the conduct unless action is taken under this section, the Commissioner may, by notice served on the agent, sales representative, auctioneer or property manager— (d) suspend the registration, with immediate effect— (i) for a specified period (not exceeding 6 months); or (ii) until the completion (including withdrawal) of specified legal proceedings; or (iii) until the fulfilment of other specified conditions; or (e) impose specified conditions on the registration, with immediate effect. (2) If the Commissioner is satisfied that the facts and circumstances that gave rise to the imposition of conditions on a registration under this section have so altered that the imposition of the conditions is no longer necessary, the Commissioner must, by further notice specifying the date of termination, terminate the imposition of the conditions. (3) If, during the suspension of a registration under this section, the Commissioner is satisfied that the facts and circumstances that gave rise to the suspension have so altered that the suspension should be terminated, the Commissioner must, by further notice specifying the date of termination, terminate the suspension without delay and restore the registration to the person (either in the form in which it existed prior to the suspension or subject to new conditions). (4) A person whose registration is suspended or made subject to conditions under this section may seek a review by the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 of the decision of the Commissioner to suspend the registration (including the period of the suspension) or to impose the conditions. (5) Subject to subsection (7), an application for review must be made to the Tribunal within 1 month after the making of the relevant decision. (6) The Commissioner must, if so required by the person, state in writing the reasons for the Commissioner's decision. (7) If the reasons of the Commissioner are not given in writing at the time of making the decision and the person (within 1 month of the making of the decision) requires the Commissioner to state the reasons in writing, the time for making an application for review runs from the time at which the person receives the written statement of those reasons. (9) This section applies in relation to conduct occurring before or after the commencement of this section. Part 2A—Cancellation, suspension or variation of registration 11C—Commissioner may cancel, suspend or impose conditions on registration (1) If the Commissioner is satisfied that events have occurred such that a registered agent, registered sales representative, registered property manager or registered auctioneer would not be entitled to be so registered if the person were to apply for registration, the Commissioner may, by notice served on the person— (a) cancel the registration; or (b) suspend the registration for a specified period or until the fulfilment of stipulated conditions; or (c) impose conditions on the registration. (2) If the Commissioner is satisfied that the facts and circumstances that gave rise to the imposition of conditions on a registration under this section have altered, the Commissioner may, by further notice specifying the date of termination, terminate the imposition of the conditions. (3) If, during the suspension of a registration under this section, the Commissioner is satisfied that the facts and circumstances that gave rise to the suspension have altered, the Commissioner may, by further notice specifying the date of termination, terminate the suspension and restore the registration to the person (either in the form in which it existed prior to the suspension or subject to new conditions). (4) A person whose registration is cancelled, suspended or made subject to conditions under this section may seek a review by the Tribunal, under section 34 of the South Australian Civil and Administrative Tribunal Act 2013, of the decision of the Commissioner to cancel or suspend the registration or to impose the conditions. (5) Subject to subsection (7), an application for review may be made to the Tribunal within 1 month after the making of the relevant decision. (6) The Commissioner must, if so required by the person, state in writing the reasons for the Commissioner's decision. (7) If the reasons of the Commissioner are not given in writing at the time of the making of the decision and the person (within 1 month of the making of the decision) requires the Commissioner to state the reasons in writing, the time for making an application for review runs from the time at which the person receives the written statement of those reasons. (9) This section applies in relation to conduct occurring before or after the commencement of this section. Part 3—Trust accounts and indemnity fund Division 1—Preliminary 12—Interpretation of Part 3 (1) In this Part, unless the contrary intention appears— auditor means— (a) a registered company auditor within the meaning of the Corporations Act 2001 of the Commonwealth; or (b) a person who meets the requirements prescribed by regulation for the purposes of this definition; fiduciary default means a defalcation, misappropriation or misapplication of trust money occurring while the money is in the possession or control of— (a) an agent; or (b) a firm of which an agent is a member; record includes information kept by computer, microfilm or other process; trust account, in relation to an agent, means an account in which trust money is required to be deposited by the agent; trust money, in relation to an agent, means money— (a) that is received by the agent when acting as an agent; and (b) to which the agent is not wholly entitled in law and in equity. (2) A reference in this Part to a fiduciary default extends to a fiduciary default that occurred before the commencement of this Act. Division 2—Trust accounts 13—Receiving and dealing with trust money (1) An agent, sales representative, property manager or any other person who receives trust money in relation to an agent must, as soon as practicable after receiving the trust money, deposit the money into an account (in the name of the agent) approved by the Commissioner at an ADI. Maximum penalty: $20 000. (2) An agent, sales representative, property manager or any other person who is entitled to deposit trust money into, withdraw trust money from, or deal with trust money in, an agent's trust account must not— (a) pay money other than trust money into the trust account; or (b) withdraw, or permit another person to withdraw, money from the trust account except as permitted by, and in accordance with, this Part. Maximum penalty: $20 000. (3) A person— (a) who receives trust money under subsection (1); or (b) who is entitled to withdraw or deal with trust money under subsection (2), must not cause a defalcation, misappropriation or misapplication of the trust money. Maximum penalty: (a) in the case of a natural person—$100 000 or 5 years imprisonment or both; (b) in the case of a body corporate—$250 000. (4) The Commissioner may, by notice in writing to an ADI— (a) approve accounts of a particular class (being accounts that carry interest at a rate considered satisfactory by the Commissioner) for the purposes of this section; or (b) vary or revoke any such approval. 14—Withdrawal of money from trust account Subject to this Part, money may only be withdrawn from a trust account for the following purposes: (a) for payment to the person entitled to the money or for payment in accordance with the directions of that person; (b) in satisfaction of a claim for commission, fees, costs or disbursements that the agent has against the person on behalf of whom the money is held; (c) to satisfy an order of a court or the Tribunal against the person on behalf of whom the agent is holding the money; (d) for payment into a court or the Tribunal before which proceedings have been instituted in relation to the money; (e) for the purpose of dealing with the money in accordance with the Unclaimed Moneys Act 1891; (f) for making any other payment authorised by law. 15—Payment of interest on trust accounts to Commissioner Interest that an ADI is liable to pay in respect of trust money held in a trust account must be paid by the ADI to the Commissioner on the days fixed by regulation. 16—Appointment of administrator of trust account (1) If the Commissioner knows or suspects on reasonable grounds that an agent— (a) is not registered as required by law; or (b) has been guilty of a fiduciary default in relation to trust money; or (c) has operated on the trust account in such an irregular manner as to require immediate supervision; or (d) has acted contrary to this Act or otherwise unlawfully or improperly or negligently in the conduct of the business; or (e) in the case of a natural person— (i) is dead or cannot be found; or (ii) is suffering from mental or physical incapacity preventing the agent from properly attending to the agent's affairs; or (f) has ceased to carry on business as an agent; or (g) has become bankrupt or insolvent or has taken the benefit (as a debtor) of a law relating to bankrupt or insolvent debtors or, in the case of a body corporate, is being wound up, is under official management or is in receivership, the Commissioner may appoint a person to administer the agent's trust account. (2) This section applies in relation to conduct occurring before or after the commencement of this Act. (3) The Commissioner must, as soon as practicable after appointing an administrator, give notice in writing of the appointment to— (a) the agent; and (b) all persons who are entitled (whether solely or jointly) to withdraw money from, or deal with money in, the account; and (c) the ADI at which the account is held. (4) A person who has been given notice of the appointment of an administrator, or who knows that an administrator has been appointed, must not withdraw money from, or deal with money in, the trust account while the appointment continues. Maximum penalty: $20 000. (5) An ADI that has been given notice of the appointment of an administrator must not, while the appointment continues, accept any withdrawal of, or dealing with, money in the trust account unless the withdrawal or dealing is at the direction, or with the written approval, of the administrator. Maximum penalty: $20 000. 17—Appointment of temporary manager (1) Where an administrator is appointed under this Division, the Commissioner may appoint that person or some other person to be a temporary manager to transact any urgent or uncompleted business of the agent. (2) The Commissioner must, as soon as practicable after appointing a temporary manager, give notice in writing of the appointment to the agent. 18—Powers of administrator or temporary manager The following powers may be exercised by an administrator or temporary manager: (a) the administrator or manager may require any person in a position to do so— (i) to produce documents and records relating to the agent's business including written records that reproduce in a readily understandable form information kept by computer, microfilm or other process; and (ii) to provide information relevant to the agent's business; and (b) the administrator may require any person in a position to do so to provide all authorities and orders to ADIs and others that may be reasonably required for the operation of the agent's trust account; and (c) the administrator or manager may take possession of documents and records forming part of the agent's business and for that purpose may enter business premises of the agent using such force as is reasonably necessary; and (d) such other powers as the Commissioner sets out in the instrument of appointment of the administrator or the manager. 19—Term of appointment of administrator or temporary manager (1) The appointment of an administrator or temporary manager remains in force for such period (not exceeding 12 months) as is specified in the instrument of appointment unless sooner terminated by the Commissioner or the Tribunal. (2) Subject to an order of the Tribunal to the contrary, the Commissioner may reappoint an administrator. 20—Review of appointment of administrator or temporary manager (1) An agent may, within 28 days after receiving notice of the appointment of an administrator or temporary manager, seek a review of the appointment by the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013. 21—Keeping of records (1) An agent must keep detailed records of all trust money received by the agent and of any disbursement of, or other dealing with, that money and must compile detailed accounts of those receipts and disbursements that— (a) accurately disclose the state of the trust account maintained by the agent; and (b) enable the receipt and disposition of trust money to be conveniently and properly audited; and (c) comply with all other requirements specified by regulation. Maximum penalty: $20 000. (2) In particular, the agent must, in respect of the receipt of trust money— (a) make available to the person making payment a receipt that sets out the information specified by regulation in the form specified by regulation; and (b) make and retain a copy of the receipt as part of the agent's records. Maximum penalty: $20 000. (3) An agent must, at the request of a person who has an interest in trust money, provide that person with a statement setting out details of dealings by the agent with the money. Maximum penalty: $20 000. (4) An agent must keep the accounts and records referred to in this section or a corresponding previous enactment in a legible written form, or so as to be readily convertible into such a form, for at least five years. Maximum penalty: $20 000. 22—Audit of trust accounts (1) Subject to this section, an agent who maintains a trust account must— (a) ensure that the accounts and records kept under this Division are audited by an auditor in respect of each audit period specified by regulation in accordance with the requirements prescribed by regulation; and (b) lodge with the Commissioner a statement relating to the audit that sets out the information specified by regulation. (1a) If no trust money was held in an agent's trust account during a particular audit period, no audit or statement is required under subsection (1) in relation to that period but the agent must make and lodge with the Commissioner a declaration, in a form approved by the Commissioner, setting out the reasons for not holding any money in the trust account during that period. (2) An agent, who did not maintain a trust account during a particular audit period, must make and lodge with the Commissioner a declaration, in a form approved by the Commissioner, setting out the reasons for not maintaining a trust account during that period. (3) An agent who— (a) fails to have accounts and records audited as required; or (b) fails to lodge an audit statement or a declaration required under this section within the time allowed by or under the regulations, is guilty of an offence. Maximum penalty: $20 000. (4) Where an agent fails to lodge an audit statement or a declaration required under this section within the time allowed by or under the regulations, the Commissioner may, by notice in writing, require the agent to make good the default. (5) Where the agent fails to comply with the notice within 28 days after service of the notice, the agent's registration is cancelled. (6) The Commissioner must notify the agent of the cancellation of the agent's registration. 23—Appointment of examiner (1) The Commissioner may, at any time, appoint a person— (a) to examine, either generally or in a particular case, the accounts and records kept under this Division by an agent; and (b) to examine, either generally or in a particular case, the audit program, working papers and other documents used or prepared by an auditor in the course of auditing the trust accounts of an agent; and (c) to confer with an auditor in relation to audits of the trust accounts of an agent. (2) An examiner may, and must if required by the Commissioner to do so, provide the Commissioner with a confidential report as to the state of any accounts or records subject to examination by the examiner. (3) The Commissioner must, as soon as practicable, cause a copy of a report provided by an examiner to be given or sent by post to the agent. (4) In this section— agent includes a former agent. 24—Obtaining information for purposes of audit or examination (1) An auditor employed by an agent to make an audit of the trust accounts of the agent, or an examiner appointed under this Division, may require the agent or any other person in a position to do so— (a) to produce all the accounts (including accounts that are not trust accounts) relating to the business of the agent and all documents and records relating to those accounts, including written records that reproduce in a readily understandable form information kept by computer, microfilm or other process; and (b) to provide any relevant information relating to the operation of the accounts. (2) The manager or other principal officer of an ADI or other financial institution with which an agent has deposited money, whether in his or her own account or in a general or separate trust account, must, on being required to do so by an auditor or examiner employed or appointed to make an audit or examination under this Division, disclose every such account (including all deposit slips, cancelled cheques and other documents relating to the operation of the account) to the auditor or examiner. Maximum penalty: $20 000. (3) A person who is required by this section to produce documents to an auditor or examiner must permit the auditor or examiner to make a copy of the whole, or any part, of those documents. Maximum penalty: $20 000. (4) In this section— account includes a record required to be kept under this Division in relation to the receipt and disposition of trust money; agent includes a former agent. 25—ADIs etc to report deficiencies in trust accounts An ADI with which a trust account has been established must, as soon as practicable, and in any event within 14 days, after becoming aware of a deficiency in that account, report the deficiency to the Commissioner. Maximum penalty: $20 000. 26—Confidentiality (1) An administrator, temporary manager, auditor or examiner must not divulge information that has come to his or her knowledge in the course of performing functions under this Act or a corresponding previous enactment except— (a) to the agent; or (b) to the Commissioner; or (c) as otherwise required by law. Maximum penalty: $20 000. (2) A person engaged in the administration of this Act, must not divulge information disclosed in a report provided under this Part or a corresponding previous enactment except— (a) for the purpose of confidential consideration of the report by the Minister or the Commissioner; or (b) as is otherwise necessary for the proper administration of this Act; or (c) as is otherwise permitted or required by law. Maximum penalty: $20 000. 27—ADIs etc not affected by notice of trust (1) Subject to subsection (2), an ADI is not affected by notice of a specific trust to which money deposited in a trust account is subject, and is not bound to satisfy itself of the due application of that money. (2) This section does not relieve an ADI of liability for negligence. 28—Failing to comply with requirement of administrators etc A person must not— (a) refuse or fail to comply with a requirement of an administrator, temporary manager, auditor or examiner under this Division; or (b) hinder, delay or obstruct an administrator, temporary manager, auditor or examiner in the performance of functions under this Division by altering or destroying relevant documents or by any other means. Maximum penalty: $20 000. Division 3—Indemnity fund 29—Indemnity fund (1) The Commissioner must maintain an indemnity fund. (2) The Commissioner may invest money constituting, or forming part of, the indemnity fund in accordance with the regulations. (3) The indemnity fund comprises— (a) the money standing to the credit of the fund kept under Part 8 of the repealed Land Agents, Brokers and Valuers Act 1973 immediately before the commencement of this Act; and (b) interest paid by ADIs to the Commissioner on trust accounts; and (c) money recovered by the Commissioner in relation to a fiduciary default; and (d) fines recovered as a result of disciplinary proceedings under Part 4; and (e) interest accruing from investment of the fund; and (f) money required to be paid into the fund under this or any other Act. (4) Money standing to the credit of the indemnity fund may be applied by the Commissioner for any of the following purposes: (a) the costs of investigating compliance with this Act, compliance with the Land and Business (Sale and Conveyancing) Act 1994 by agents or sales representatives or possible misconduct of agents, sales representatives or property managers; (ab) the costs of conciliating disputes relating to the activities of agents, sales representatives or property managers; (ac) the costs of disciplinary proceedings under Part 4; (b) the costs of prosecutions for offences against this Act or for alleged offences by agents or sales representatives against the Land and Business (Sale and Conveyancing) Act 1994; (c) costs consequent on the appointment of an administrator, temporary manager or examiner under this Act; (d) the costs of processing claims under this Division and of paying out those claims to the extent authorised by this Division; (e) the costs of administering and insuring the fund; (f) the payment of amounts, approved by the Minister, towards the cost of— (i) prescribed educational programs conducted for the benefit of agents, sales representatives, property managers or members of the public; or (ii) reviewing the operation of this Act; or (iii) reviewing the operation of the Land and Business (Sale and Conveyancing) Act 1994 insofar as it relates to agents or sales representatives; (g) any other purpose specified by or under this or any other Act. 29A—Division of indemnity fund into two parts (1) The indemnity fund is notionally divided into two parts (Part A and Part B)— (a) one part, Part A, is to consist of the balance of the indemnity fund at any particular time, less the amount standing to the credit of Part B at that time; (b) one part, Part B, is to consist of $13.5 million, as credited to this part of the fund on the commencement of this section, then less any amounts paid from time to time in accordance with the scheme set out in Schedule 2A. (2) Part A will be available— (a) for the purposes of this Division; and (b) for the purposes of any other Act that makes provision for payments from the indemnity fund, and any reference in this Division or in another Act that relates to the indemnity fund will be taken to be a reference to Part A of the indemnity fund (unless the contrary intention appears). (3) Part B will be available for the purposes of Schedule 2A. (4) The Commissioner's powers of investment with respect to the indemnity fund apply to both Part A and Part B. (5) This section expires when Schedule 2A expires and, on that expiry, the division of the indemnity fund into two parts will cease. 30—Claims on indemnity fund (1) A person who has suffered a pecuniary loss as a result of a fiduciary default may make a claim for compensation to the Commissioner. (2) The amount of the claim cannot exceed the sum of— (a) the actual pecuniary loss suffered by the claimant in consequence of the fiduciary default; and (b) any reasonable legal expenses incurred in taking action to recover the loss or in making the claim to the Commissioner, less any amount that the claimant has received or may reasonably be expected to recover (apart from this Division) in reduction of the loss. (3) A person is not entitled to make a claim under this Division where— (a) the agent by whom the fiduciary default was committed, or to whom the fiduciary default relates, was required to be registered or licensed under this Act or a corresponding previous enactment; and (b) that person knew, or ought to have known, at the time of appointing or instructing the agent, that the agent was not so registered or licensed. 31—Limitation of claims (1) The Commissioner may, by notice published in a newspaper circulating generally throughout the State, fix a day (not earlier than three months after the publication of the notice) on or before which claims in respect of a fiduciary default, or a series of fiduciary defaults, referred to in the notice, must be made. (2) A claim that is not made within the time fixed by the notice is barred unless the Tribunal, on application, otherwise determines. (3) No action in defamation lies in respect of the publication, in good faith, of the notice. 32—Establishment and determination of claims (1) A claim for compensation must be made to the Commissioner in a manner and form determined by the Commissioner. (1a) The Commissioner may require a person making a claim— (a) to furnish further information specified by the Commissioner; (b) to verify, by statutory declaration, information furnished for the purposes of making or establishing a claim. (2) The Commissioner must, on receipt of a claim for compensation— (a) give the claimant and the agent or former agent concerned notice of the claim in accordance with the regulations; and (b) allow the claimant and the agent or former agent a reasonable opportunity to appear before the Commissioner personally or by representative to make submissions as to the claim. (3) The Commissioner may do any 1 or more of the following in response to the claim: (a) require the claimant to take specified action to recover the loss (and postpone determination of the claim); (b) determine the claim and, if appropriate, make a payment to the claimant from the indemnity fund; (c) require the claimant to make contractual undertakings as to the assistance that the claimant must give the Commissioner in any action taken by the Commissioner to recover the loss. (4) In deciding whether to require the claimant to take action to recover the loss, and in deciding what action the claimant should be required to take to recover the loss, the Commissioner is to consider the size of the claim, the complexity of the case, the claimant's financial circumstances, the claimant's mental or physical health or capacity and any other factors that the Commissioner considers relevant. (5) The Commissioner must— (a) keep the claimant informed of the progress of the claim in accordance with the regulations; and (b) on making a determination on a claim, give the claimant and the agent or former agent written notice of the determination. 33—Claims by agents (1) An agent who has paid compensation to a person for pecuniary loss suffered in consequence of a fiduciary default committed by a partner or employee of the agent may make a claim for compensation to the Commissioner. (2) The Commissioner must, on receipt of the claim, if satisfied that— (a) all legal or equitable claims in respect of the fiduciary default have been fully satisfied; and (b) the claimant acted honestly and reasonably in all the circumstances of the case, determine the amount of compensation payable to the claimant and, by notice in writing, inform the claimant of the determination. (3) A person is not entitled to make a claim under this section where— (a) the agent by whom the fiduciary default was committed, or to whom the fiduciary default relates, was required to be registered or licensed under this Act or a corresponding previous enactment; and (b) that person knew, or ought to have known, at the time of the default, that the agent was not so registered or licensed. 34—Personal representative may make claim The personal representative of a claimant (including a deceased claimant) is entitled to make the claim on behalf of the claimant or the claimant's estate. 35—Review of Commissioner's determination (1) The claimant or the agent or former agent by whom the fiduciary default was committed or to whom the fiduciary default relates may seek a review of the Commissioner's determination by the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013. (1a) An application for review may be made to the Tribunal within 3 months after the person receives notice of the determination. (2) Where an application for review is not made within the time allowed, the claimant's entitlement to compensation is finally determined for the purposes of this Division. 36—Determination, evidence and burden of proof (1) In determining a claim for compensation under this Division, any possible reduction to which the claimant's entitlement may be subject because of insufficiency of the indemnity fund must be disregarded. (2) In determining a claim for compensation under this Division— (a) an admission or confession may be accepted as evidence of a fiduciary default despite the absence of the person by whom the admission or confession was made; and (b) questions of fact are to be decided on the balance of probabilities. 37—Claimant's entitlement to compensation and interest (1) Subject to any reduction because of insufficiency of the indemnity fund, a claimant is entitled to payment of the amount of compensation determined under this Division. (2) A claimant's entitlement to compensation will (to the extent to which it has not been satisfied or discharged) be increased by interest at the rate fixed by regulation from the first anniversary of the lodgment of the claim with the Commissioner until the entitlement is satisfied or discharged, but interest must not be calculated on any component of the claimant's entitlement that is attributable to interest that has already accrued under this subsection. 38—Rights of Commissioner (1) Where the Commissioner makes a payment (whether in respect of compensation or interest) to a claimant, the Commissioner is, to the extent of the payment, subrogated to the rights of the claimant against a person liable at law or in equity for the fiduciary default in respect of which the payment was made. (2) However, this section does not confer on the Commissioner any right to recover money from a person whose liability in respect of a fiduciary default does not arise from a wrongful or negligent act or omission on that person's part. 39—Insurance in respect of claims against indemnity fund (1) The Commissioner may insure the indemnity fund to such extent as the Commissioner thinks fit against claims under this Division. (2) The cost of the insurance will be paid from the indemnity fund. 40—Insufficiency of indemnity fund (1) Where the indemnity fund is insufficient to pay all outstanding amounts to which claimants are entitled, the Commissioner must make proportionate reductions in the amounts paid out in respect of those entitlements. (2) Where, at the time at which a claimant's entitlement to compensation is determined, other persons have made claims that have not yet been determined, the Commissioner may defer payment of the claimant's entitlement for any period (not exceeding 12 months) in order to allow time for the entitlements of those other claimants to be determined. (3) The Commissioner may set aside a part of the indemnity fund as the Commissioner from time to time considers necessary to protect the interests of persons who— (a) have made claims against the fund that have not been determined; or (b) are likely to make claims against the fund in the future, and, when determining whether payments to claimants should be reduced, the Commissioner must not take into account a part of the fund set aside by the Commissioner. (4) If, after a claimant's entitlement to compensation has been determined, the claimant recovers an amount (that was not allowed for in that determination) in respect of the pecuniary loss suffered by the claimant, the claimant's entitlement to compensation is reduced by the amount recovered. (5) Entitlements in respect of which payments are made under this section are discharged despite the fact that they may not have been satisfied in full. (6) The Commissioner may, with the approval of the Minister, make payments to a person— (a) whose entitlement to compensation has been discharged; or (b) whose entitlement to compensation is insufficient because an amount that the person was expected to recover in respect of the pecuniary loss has not been recovered; or (c) whose claim is barred, but a payment so made does not revive or reinstate an entitlement or claim. 41—Accounts and audit (1) The Commissioner must keep proper accounts of all money received and dealt with under this Division. (2) The Auditor-General may at any time, and must at least once in every calendar year, audit those accounts. Part 4—Discipline 42—Interpretation of Part 4 In this Part— agent has the meaning assigned to the term by section 4 and includes— (a) a former agent; and (b) a registered agent, whether or not carrying on business as such, and a former registered agent; director of a body corporate includes a former director of a body corporate; property manager has the meaning assigned to the term by section 3 and includes— (a) a former property manager; and (b) a registered property manager, whether or not in employment as such, and a former registered property manager; sales representative has the meaning assigned to the term by section 3 and includes— (a) a former sales representative; and (b) a registered sales representative, whether or not in employment as such, and a former registered sales representative. 43—Cause for disciplinary action against agents, sales representatives or property managers (1) There is proper cause for disciplinary action against an agent, sales representative or property manager if— (a) any registration of the person under this Act was improperly obtained; or (b) the person has acted contrary to an assurance accepted by the Commissioner under the Fair Trading Act 1987; or (c) the person has acted contrary to this Act or the Land and Business (Sale and Conveyancing) Act 1994 or otherwise unlawfully, improperly, negligently or unfairly; or (d) in the case of an agent who has been employed or engaged to manage and supervise an incorporated agent's business or an agent's place of business, the agent or any other person has acted unlawfully, improperly, negligently or unfairly in the course of managing or supervising, or being employed or otherwise engaged in or at that business or place of business; or (e) events have occurred such that the person would not be entitled to be registered as an agent, sales representative or property manager if the person were to apply for registration. (2) Disciplinary action may be taken against each director of a body corporate that is an agent if there is proper cause for disciplinary action against the body corporate. (3) Disciplinary action may not be taken against a person in relation to the act or default of another if that person could not reasonably be expected to have prevented the act or default. (4) This section applies in relation to conduct occurring before or after the commencement of this Act. 44—Complaints The Commissioner or any other person may lodge with the Tribunal a complaint setting out matters that are alleged to constitute grounds for disciplinary action under this Part. 45—Hearing by Tribunal (1) On the lodging of a complaint, the Tribunal may conduct a hearing for the purpose of determining whether the matters alleged in the complaint constitute grounds for disciplinary action under this Part. (2) Without limiting the usual powers of the Tribunal, the Tribunal may during the hearing— (a) allow an adjournment to enable the Commissioner to investigate or further investigate matters to which the complaint relates; and (b) allow the modification of the complaint or additional allegations to be included in the complaint subject to any conditions as to adjournment and notice to parties and other condi