Australian Capital Territory Current Acts

LEGAL PROFESSION ACT 2006 - SECT 369

In this part:

"approved policy of fidelity insurance"—see section 373 (2) (Solicitor to have fidelity cover for regulated mortgages).

"ASIC exemption" means an exemption from the Corporations Act

given by the Australian Securities and Investments Commission under that Act.

"associate", of a solicitor, means—

        (a)     a partner of the solicitor, whether or not the partner is a solicitor; or

        (b)     an employee or agent of the solicitor; or

        (c)     a corporation, or a member of a corporation, partnership, syndicate or joint venture, in which the solicitor or a person mentioned in paragraph (a) or (b) has a beneficial interest; or

        (d)     a co-trustee with the solicitor; or

        (e)     a person who is in a prescribed relationship to the solicitor or to a person mentioned in paragraph (a), (b), (c) or (d).

"borrower" means a person who borrows from a lender or contributor money that is secured by a mortgage.

"client", of a solicitor, means a person who—

        (a)     receives the solicitor's advice about investment in a regulated mortgage or managed investment scheme; or

        (b)     gives the solicitor instructions to use money for a regulated mortgage or managed investment scheme.

"contributor" means a person who lends, or proposes to lend, money that is secured by a contributory mortgage arranged by a solicitor.

"contributory mortgage" means a mortgage to secure money lent by 2 or more contributors as tenants in common or joint tenants, whether or not the mortgagee is someone who holds the mortgage in trust for the contributors.

"financial institution" means—

        (a)     an ADI; or

        (b)     a friendly society under the Life Insurance Act 1995

(Cwlth); or

        (c)     a trustee company under the Trustee Companies Act 1947

; or

        (d)     a property trust or other corporation established by or in relation to a church that may invest money in accordance with an Act; or

        (e)     an entity prescribed by regulation for this definition.

"lender" means a person who lends, or proposes to lend, a borrower money that is secured by a mortgage.

"member", of a managed investment scheme—see the Corporations Act

, section 9 (Dictionary).

"prescribed relationship"—a person is in a prescribed relationship to another person if the relationship is that of—

        (a)     a domestic partner; or

        (b)     a child, grandchild, brother, sister, parent or grandparent (whether derived through a domestic partner or otherwise); or

        (c)     a kind prescribed by regulation for this subsection.

Note     For the meaning of domestic partner , see the Legislation Act

, s 169.

"regulated mortgage" means a mortgage (including a contributory mortgage) other than—

        (a)     a mortgage under which the lender is a financial institution; or

        (b)     a mortgage under which the lender or contributors nominate the borrower, but only if the borrower is not a person introduced to the lender or contributors by the solicitor who acts for the lender or contributors or by—

              (i)     an associate of the solicitor; or

              (ii)     an agent of the solicitor; or

              (iii)     a person engaged by the solicitor to introduce the borrower to the lender or contributors; or

        (c)     a mortgage prescribed by regulation as exempt from this definition.

"responsible entity"—see the Corporations Act

, section 9 (Dictionary).

"run-out mortgage" means a regulated mortgage entered into before 10 September 2002 that is not—

        (a)     a territory regulated mortgage; or

        (b)     a mortgage that forms part of a managed investment scheme that is required to be operated by a responsible entity under the Corporations Act

(as modified by any ASIC exemption or the regulations under that Act).

"territory regulated mortgage"—a regulated mortgage is a territory regulated mortgage in relation to a solicitor if—

        (a)     the solicitor's practice is a territory regulated mortgage practice; and

        (b)     the regulated mortgage does not form part of a managed investment scheme or, if it does form part of a managed investment scheme, the managed investment scheme is not required to be operated by a responsible entity under the Corporations Act

(as modified by any ASIC exemption or a regulation under that Act).

"territory regulated mortgage practice" means a solicitor's practice for which a nomination under section 371 (Nomination of practice as territory regulated mortgage practice) is in force.