New South Wales Consolidated Acts

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PROPERTY, STOCK AND BUSINESS AGENTS ACT 2002 - As at 1 July 2019 - Act 66 of 2002


TABLE OF PROVISIONS

           Long Title

   PART 1 - PRELIMINARY

   1.      Name of Act
   2.      Commencement
   3.      Definitions
   4.      Regulations may exempt persons and activities from Act
   5.      Exemptions from Act
   6.      Notes

   PART 2 - LICENCES AND CERTIFICATES OF REGISTRATION

           Division 1 - Requirement for licence or certificate of registration

   7.      (Repealed)
   8.      Agents required to be licensed
   9.      Corporations require corporation licence
   10.     Salespersons and managers require certificate of registration
   11.     Registered salespersons and managers required to be employed and supervised by licensee
   11A.    Person carrying on business of agent to ensure staff exercising regulated functions hold licence or certificate
   12.     Production of licence or certificate of registration
   13.     Transfer or lending of licence or certificate of registration prohibited

           Division 2 - Eligibility, qualifications and disqualification

   14.     Eligibility for licence or certificate of registration
   15.     Qualifications for licence or certificate of registration
   16.     Disqualified persons

           Division 3 - Application and issue procedure

   17.     Application to licences of Licensing and Registration (Uniform Procedures) Act 2002
   17A.    Application fees and Compensation Fund contributions
   18.     (Repealed)
   19.     Certain applications to be refused
   20.     Conditions--general
   21.     Special condition requiring auctioneers to be accredited
   22.     Special condition requiring professional indemnity insurance
   23.     Special conditions for on-site residential property managers and registered managers
   24.     (Repealed)
   25.     Duration
   26.     Effect of applying for restoration of expired licence
   27.     Administrative review by NCAT

   PART 3 - GENERAL CONDUCT OF LICENSEES AND REGISTERED PERSONS

           Division 1 - Place and name of business

   28.     Registered office and address
   29.     Display of name at registered office
   30.     Business names

           Division 2 - Business practices and supervision

   31.     Each place of business to be in charge of licensee
   32.     Duty of licensee and person in charge to properly supervise business
   33.     Licensee not to share commission with certain persons
   34.     Non-commercial subagency agreements to be in writing
   35.     Franchising agreements
   36.     Review of commission and fees
   37.     Rules of conduct for licensee's business
   38.     Undertakings by licensees and registered persons
   39.     Duty of licensee to notify defalcation
   40.     Industry association to report defalcation

           Division 3 - Employees and others

   40A.    Interpretation--persons engaged by licensees
   41.     Liability of licensee for acts of employees
   42.     Licensee to keep records of certain employees
   43.     Duty of licensee not to engage certain persons
   44.     Duty of licensee to notify disqualification of employees and others
   45.     Employees and others required to notify disqualification

           Division 4 - Conflicts of interest

   46.     Financial and investment advice by real estate agents
   47.     Duty of disclosure to client and prospective buyer of land
   48.     Duty not to act for both buyer and seller of land
   49.     Restrictions on licensee obtaining beneficial interest in property

           Division 5 - Advertisements and representations

   50.     Advertisements to include information about licensee
   51.     (Repealed)
   52.     Misrepresentation by licensee or registered person
   53.     Damages for misrepresentation or concealment

           Division 6 - Unjust conduct by licensees

   53A.    Interpretation
   53B.    Undertakings by licensee
   53C.    Register of Undertakings
   53D.    Restraint of unjust conduct
   53E.    Variation etc of restraining order

   PART 4 - AGENCY AGREEMENTS

           Division 1 - Requirements for agency agreements

   54.     Definitions
   55.     No entitlement to commission or expenses without agency agreement
   55A.    Relief from disentitlement to commission and expenses
   56.     Approved guide to be provided before agency agreement for residential property signed
   57.     Agency agreement must disclose rebates, discounts and commissions
   58.     Prohibition against listing residential or rural land subject to sole or exclusive agency

           Division 2 - Cooling-off period for residential or rural agency agreements

   59.     Cooling-off period for residential or rural agency agreements
   60.     Agency agreement can be rescinded during cooling-off period
   61.     Effect of rescission
   62.     No contracting out

   PART 5 - RESIDENTIAL PROPERTY AND RURAL LAND SALES

           Division 1 - Contract for sale of residential property

   63.     Proposed contract for sale of residential property
   64.     Contracts for sale of residential property
   65.     Procedure following rescission

           Division 2 - Bidding at auction of residential property or rural land

   66.     Prevention of dummy bidding
   66A.    Offences by auctioneers
   67.     Bids may only be taken from registered bidders
   68.     Bidders Record
   69.     Details to be established by proof of identity
   70.     Confidentiality of Bidders Record
   71.     Approved consumer education guide for bidders at auctions

           Division 3 - Representations as to selling price

   72.     Definitions
   72A.    Estimated selling price in agency agreement for sale of residential property
   73.     Underquoting in advertisements for residential property
   73A.    Underquoting in representations by real estate agents
   73B.    Real estate agents to keep records of quotes
   74.     Requirement to substantiate selling price estimates--residential property
           75, 76. (Repealed)
   76A.    Marketing statements about vendor bids when property passed in

   PART 6 - AUCTIONS--GENERAL

   77.     Prescribed auction conditions
   78.     Collusive practices at auction sales
   79.     False entry in auction record
   80.     Misrepresentation as to quality etc
   81.     Restrictions on bidding by or on behalf of seller or auctioneer of livestock
   82.     Contracting out of prescribed terms and conditions of auction sales
   83.     Successful bidder at auction to supply information
   84.     Livestock auctions--"comeback" prohibited

   PART 7 - TRUST ACCOUNTS

           Division 1 - Preliminary

   85.     Interpretation

           Division 2 - Payment of trust money into trust account

   86.     Trust money to be paid into trust account
   87.     Approval of authorised deposit-taking institutions
   88.     Trust money not available to pay licensee's debts
   89.     Licensee to notify trust account becoming overdrawn
   90.     Interest earned on trust accounts to be paid to Statutory Interest Account

           Division 3 - Responsibilities of authorised deposit-taking financial institutions

   91.     Monthly returns by authorised deposit-taking institutions
   92.     Overdrawn trust accounts
   93.     Dishonoured cheques
   94.     Annual certification by auditor
   95.     Protection of authorised deposit-taking institutions from liability

           Division 4 - (Repealed)
           None

           Division 5 - Information about trust accounts or transactions

   100.    Secretary may require information
   101.    Person concerned in transaction may request itemised account
   102.    Offence

   PART 8 - RECORDS

           Division 1 - Keeping and inspection of records

   103.    Licensee's records
   104.    Licensee to make and keep certain records
   105.    Inspection of licensee's records
   106.    Inspection of records of financial institutions
   107.    Power to require production of licensee's records
   108.    Power to take possession of records to be used as evidence
   109.    Additional requirements for managing agents
   110.    Offence

           Division 2 - Audit of licensee's records

   111.    Requirement for audit
   112.    Audit period
   112A.   Random audits
   113.    (Repealed)
   114.    Audit obligations of partners
   115.    Qualifications of auditors
   116.    Duties of auditors

           Division 3 - Freezing of accounts

   117.    Definitions
   118.    Secretary may freeze licensee's accounts in particular cases
   119.    Financial institution must comply with direction
   120.    Account not to be operated unless Secretary allows
   121.    Secretary may operate account
   122.    Withdrawal of direction

   PART 9 - MANAGEMENT AND RECEIVERSHIP

           Division 1 - Preliminary

   123.    Definitions
   124.    Associates of a licensee
   125.    Failure to account

           Division 2 - Management

   126.    Appointment of manager
   127.    Qualifications for appointment as manager
   128.    Powers of manager
   129.    Management continues under receivership
   130.    Acts of manager taken to be acts of licensee
   131.    Manager may be reimbursed for damages
   132.    Payment of expenses of management
   133.    Manager to report to Secretary
   134.    Trust money
   135.    Office accounts
   136.    Termination of management
   137.    Obstruction of managers

           Division 3 - Receivership

   138.    Supreme Court may appoint receiver
   139.    Receivership may extend to property of licensee's associate
   140.    Court to be closed
   141.    Order to be served
   142.    Receiver may take possession of property
   143.    Information about receivable property
   144.    Stop order on account
   145.    Improper dealing with property
   146.    Recovery of compensation for disposal of receivable property
   147.    Receiver may give certificate
   148.    Receiver taken to be beneficially entitled to property
   149.    Receiver may deal with property
   150.    Other powers of receiver
   151.    Notice to claim receivable property
   152.    Lien on receivable property
   153.    Examination by receiver
   154.    Property not dealt with by receiver
   155.    Investment of money by receiver
   156.    Receiver may be reimbursed for damages
   157.    Payment of expenses of receivership
   158.    Supreme Court may review expenses of receivership
   159.    Receivable property not to be attached
   160.    Applications for directions by receiver, licensee etc
   161.    Supreme Court may give general directions to receiver
   162.    Receiver to report to Supreme Court and Secretary
   163.    Termination of appointment of receiver
   164.    Obstruction of receivers

   PART 10 - COMPENSATION FUND

           Division 1 - Establishment and management

   165.    Compensation Fund
   166.    Money payable to Compensation Fund
   167.    Application of money in Compensation Fund

           Division 2 - Contributions and levies

   168.    Contributions
   169.    Levies

           Division 3 - Claims

   170.    Definitions
   171.    Meaning of "failure to account"
   172.    Division applies when person reasonably believed to be a licensee
   173.    Claims against Compensation Fund
   174.    Legal proceedings
   175.    Limits on amounts recoverable
   176.    Advertisements
   177.    Subrogation
   178.    Recovery of payments from directors
   179.    Production of documents
   180.    Satisfaction of claims and judgments

           Division 4 - Examination of accounts of licensees and former licensees

   181.    Definitions
   182.    Appointment of accounts examiner to examine licensee's accounts
   183.    Accounts examiner to report on accounts
   184.    Powers of accounts examiner
   185.    Confidentiality
   186.    Former licensees

   PART 11 - PROPERTY SERVICES STATUTORY INTEREST ACCOUNT

   187.    Statutory Interest Account
   188.    Money payable to Statutory Interest Account
   189.    Application of money in Statutory Interest Account
   190.    Application of money for purposes of certain Acts

   PART 12 - COMPLAINTS AND DISCIPLINARY ACTION

   191.    Grounds for disciplinary action
   192.    Disciplinary action
   193.    Decision to take no further action
   194.    Complaints
   195.    Show cause notice
   196.    Power to suspend licence or certificate of registration when show cause notice served
   197.    Inquiries and investigation
   198.    Taking of disciplinary action
   199.    Recovery of monetary penalty
   200.    Administrative review of disciplinary action by NCAT
   201.    Warning notices
   202.    Failure to comply with disqualification from involvement in business
   203.    Return of suspended or cancelled licence

   PART 13 - ENFORCEMENT

   204.    Authorised officers
   205.    Powers of entry, inspection etc
   206.    Power of authorised officer to obtain information, records and evidence
   207.    Obstruction etc of authorised officers
   208.    Taking possession of records to be used as evidence
   209.    Search warrants
   210.    Injunctions

   PART 14 - OFFENCES AND PROCEEDINGS

           Division 1 - Offences

   211.    Fraudulent conversion and false accounts of money received by licensee or registered person
   212.    Fraudulent accounts for expenses, commission and other charges
   213.    Offences by persons other than principal offenders
   214.    Operation of Crimes Act not affected

           Division 2 - Proceedings

   215.    Proceedings for offences
   216.    Penalty notices
   217.    Time for laying information
   218.    Liability of directors etc for offences by corporation--accessory to the commission of the offences

   PART 15 - ADMINISTRATION

   219.    Disclosure of information
   220.    Register
   221.    Certificate evidence
   222.    Delegation

   PART 16 - MISCELLANEOUS

   223.    Fair Trading Act not affected
   224.    Exclusion of personal liability
   225.    Service of notices
   226.    Repeals
   227.    Savings and transitional provisions
   228.    (Repealed)
   229.    Displacement of Corporations legislation
   230.    Regulations
   231.    Review of Act
           SCHEDULE 1
           Schedule 2 (Repealed)


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