No [30th September, 1958.]

Transcription

1 1958. Estate Agents. No No ESTATE AGENTS ACT An Act to consolidate the Law relating to Estate Agents and Sub-agents. [30th September, 1958.] BE it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say): 1. This Act may be cited as the Estate Agents Act 1958, short me, and shall come into operation on a day to be fixed by proclamation memand e ~ of the Governor in Council published in the Government Gazette, V u? n into and is divided into Parts as follows: Part I. Introductory ss Part II. The Commitee ss Part III. Licences ss Part IV. Agents and Sub-agents ss Part V. Funds and Accounts ss Part VI. Miscellaneous ss PART I. INTRODUCTORY. 2. (1) The Acts mentioned in the Schedule to the extent??"?* thereby expressed to be repealed are hereby repealed accordingly. ul6 '

2 Estate Agents. No As to existing fidelity bonds. Interpretation. No s. 3. " Business." " Business day." " Commission." " Committee." " Employ." (2) Except as in this Act expressly or by necessary implication provided (a) all persons things and circumstances appointed or created by or under either of the repealed Acts, or existing or continuing under either of those Acts immediately before the commencement of this Act, shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if those Acts had not been so repealed; (b) in particular and without affecting the generality of the foregoing paragraph, such repeal shall not disturb the continuity of status operation or effect of any regulation rule order licence register record application appointment statement audit return fund liability or right made effected issued granted given passed accrued incurred or acquired or existing or continuing by or under either of such repealed Acts before the commencement of this Act. (3) Notwithstanding such repeal the provisions of section twenty-one of the Real Estate Agents Act 1928 and of sub-section (2) of section nineteen of the Real Estate Agents Act 1930 and of sections thirty and thirty-one of the Business Agents Act 1930 as in force immediately before the commencement of the Estate Agents Act 1956 shall so long as applicable continue to operate in relation to fidelity bonds lodged pursuant to the Real Estate Agents Act 1928 and the Business Agents Act 1930 before the commencement of this Act. 3. In this Act unless inconsistent with the context or subject-matter " Business " includes any stock good-will or other property or assets included in any transaction relating to a business. ' Business day " means any day other than a Saturday or a Sunday or a day appointed by or under the Bank Holidays Act 1958 as a holiday for the whole day or for specified hours thereof in all banks or in banks within the locality concerned. ; Commission" includes fees charges reward or other remuneration whether monetary or otherwise. Committee " means the Estate Agents Committee under this Act. Employ " (in relation to the employment of any person as a sub-agent) includes not only directly employ but also by any arrangement or any means whatsoever

3 1958. Estate Agents. No lb engage induce or permit any person to act as a sub-agent, and the derivatives of "employ" have a corresponding interpretation. "Estate agent" or "agent" means any person (whether "Estate or not he carries on any other business) who exercises «8 l^nt.» or carries on or advertises or notifies or states that he exercises or carries on or that he is willing to exercise or carry on or in any way holds himself out to the public as ready to undertake any of the following functions on behalf of any other person or for or in consideration of any payment or other remuneration whether monetary or otherwise, namely (a) the selling buying exchanging letting or taking on lease of or otherwise dealing with or disposing of; or (b) the negotiating for the sale purchase exchange letting or taking on lease of or any other. dealing with or disposition of any real estate or hotel business boarding-house business store-keeping business manufacturing business or trading business whatsoever or any share or interest in or concerning the good-will of or any stocks connected with any such business and includes any person who (i) is employed by any other person (including a corporation) who or which is not required by this Act to be licensed; or (ii) is a member of or shareholder in any such corporation and who in either case on behalf of such other person or such corporation negotiates in any manner aforesaid. " Estate agent's licence" means a valid and unexpired "Estate estate agent's licence under this Act. ussce*.- " Letting " includes every form of leasing or letting of or Letting." granting a licence to use real estate; and the function or business of " letting " includes the collection or receipt of rents by an agent on behalf of his principal whether such agent has or has not let the real estate in question. "Licence" means estate agent's licence or sub-agent's -Licence." licence (as the case may be). " Licensed auctioneer " means a person holding a licence " Licensed under the Auction Sales Act auctioneer.-

4 Estate Agents. No " Licensed estate agent.' " Licensed sub-agent." ' Part." ' Prescribed.* " Real estate." ' Record." " Registered address." " Registered office." ' Registrar." " Regulations?" " Rutes." "Subagent." 'Subagent's licence." ''Treasurer." ' Licensed estate agent" means the holder of an estate agent's licence, and includes a corporation on whose behalf such a licence is held. ' Licensed sub-agent" means the holder of a sub-agent's licence. ' Part" means Part of this Act. ' Prescribed" means prescribed by this Act or the regulations or rules. ' Real estate " includes any estate or interest in land or buildings and any goods chattels or other property or assets included in any transaction relating to real estate. ' Record" means the record of estate agents and sub-agents required by this Act to be kept. ' Registered address" means address which is for the time being entered in the record in respect of a sub-agent as the address to which all communications and notices may be addressed. ' Registered office " means (a) the place or places of business of a licensed estate agent; or (b) the principal office and any branch office or agency office of a corporation being a licensed estate agent which is or are for the time being entered in the record in respect of such agent as the address to which communications and notices may be addressed. 1 Registrar " means the Registrar of Estate Agents under this Act. ' Regulations " means regulations under this Act. ' Rules" means rules under this Act. ' Sub-agent" means any person in the direct employ of or acting for or by arrangement with an estate agent who performs for such estate agent any of the functions of an estate agent whether his remuneration is by way of salary wages commission or otherwise; and, where the estate agent is a corporation, includes any director member or officer of the corporation who performs for such corporation any of the said functions (and whether or not he is remunerated as aforesaid) other than a person who holds an estate agent's licence on behalf of the corporation. 'Sub-agent's licence" means a valid and unexpired sub-agent's licence under this Act Treasurer " means the Treasurer of Victoria

5 1958. Estate Agents. No (1) This Act shall not be construed as requiring Act not to (a) any responsible Minister of the Crown or any Departments, Government Department; ** _.. r No s. 4; (b) the Board of Land and Works the Housing Commission Mi? 1 ")! 8 ' ' the State Rivers and Water Supply Commission the Victorian Railways Commissioners the Forests Commission the Soldier Settlement Commission the Country Roads Board the State Electricity Commission of Victoria the Rural Finance Corporation or the Commissioners of the State Savings Bank of Victoria; (c) any municipal corporation (including the city of Melbourne and the city of Geelong) or the council thereof or any local authority within the meaning of the Public Contracts Act 1958; (d) any other public statutory authority specified for the purposes of this section by Order of the Governor in Council published in the Government Gazette; (e) any officer or employe of the Crown or of any such Department corporation council or authority in the exercise of his functions as such to hold a licence under or observe the requirements of this Act. (2) This Act shall not be construed saving for trustees, (a) as requiring $ t een ' (i) any executor, administrator, trustee, &c mp liquidator, official receiver, trustee or assignee of a bankrupt, committee of a lunatic, curator or receiver for the purposes of performing his functions exercising his powers or carrying out his duties as such; (ii) any person for the purposes of any sale referred to in the final paragraph of section three of the Auction Sales Act 1958; (iii) any licensed auctioneer (but so far only as he sells by auction under the last-mentioned Act); (iv) the Public Trustee or any trustee company under the Trustee Companies Act 1958 or any officer thereof while bona fide engaged as such officer;

6 Estate Agents. No (v) any barrister or solicitor of the Supreme Court (but only in respect of the performance and exercise by him of the ordinary functions and powers of a barrister or solicitor as such); or (vi) any class of persons exempted therefrom by the regulations to hold a licence under or (except in respect of any provision of this Act which is specifically expressed to apply to any such class of persons) to observe the requirements of this Act: Provided that, notwithstanding anything in this paragraph (a), it shall not be lawful for any executor administrator or trustee (other than the Public Trustee or a trustee company aforesaid) of the estate of a deceased estate agent to exercise or carry on the business of the agent as such executor administrator or trustee at any time after the expiration of twelve months after the death of the agent unless such executor administrator or trustee is a licensed estate agent; or (b) as prohibiting any person (not being an estate agent or a sub-agent) from performing any function exercising any power or carrying out any duty which apart from this Act he would have been entitled to perform exercise or carry out under the express authority or permission of any Act. PART II. THE COMMITTEE.. 5. (1) For the purposes of this Act there shall be a >- s Committee to be known as the " Estate Agents Committee ". (2) The Committee shall consist of five members of whom (a) two, one of whom shall be a barrister and solicitor of not less than five years standing, shall be appointed by the Governor in Council; (b) two shall be appointed by the Governor in Council from a panel, submitted by the Real Estate and Stock Institute of Victoria, of names of five persons who have for the previous five years been licensed estate agents practising as such;

7 1958. Estate Agents. No (c) one shall be appointed by the Governor in Council from a panel, submitted by the Real Estate Agents' Association, of names of three persons who have for the previous five years been licensed estate agents practising as such. (3) One of the members shall be appointed by the Governor in Council as chairman of the Committee and one as deputy chairman of the Committee. (4) Each member shall be appointed for such term not exceeding three years as is fixed by the Governor in Council in the instrument of his appointment and shall be eligible for re-appointment and may be removed from office at any time by the Governor in Council and shall be paid such fees and expenses, if any, as are prescribed. (5) In the case of the suspension illness or absence of a member, or in the case of an extraordinary vacancy in the office of a member, the Governor in Council may (in the case of a member referred to in paragraph (b) or (c) of sub-section (2) of this section, from a panel of names of three qualified persons submitted by the appropriate body) appoint some person to act as the deputy of such member during such suspension illness or absence or until such vacancy is filled (as the case may be) and such deputy may exercise the powers and perform the duties of such member accordingly. (6) If any body referred to in paragraph (b) or (c) of sub-section (2) of this section fails, within fourteen days after having been requested in writing by the Minister so to do, to submit the appropriate panel of names for the purposes of this section the Governor in Council may appoint a member or deputy member without the submission of such a panel. 6. (1) At any meeting of the Committee three members, Meetings, one of whom is the chairman or the deputy chairman, shall form NO s. 6. a quorum. (2) At any meeting of the Committee the chairman, or in the absence of the chairman the deputy chairman, shall preside. (3) The chairman of the meeting shall have a deliberative and (in the case of an equality of votes) a casting vote. (4) The Committee shall meet at such times and places as are fixed by the chairman. (5) Subject to this Part the Committee may regulate its own proceedings. 7. For the purpose of enabling the Committee to conduct Taking any investigation or inquiry which it deems necessary for the evijenee - purposes of this Act the provisions of sections fourteen to sixteen No *'

8 Estate Agents. No of the Evidence Act 1958 shall apply as if the Committee were a board appointed by the Governor in Council and as if the chairman, or in his absence the deputy chairman, of the Committee had the powers of the chairman of a board appointed by the Governor in Council. Powers of Committee. No s. 8; No s.3(l). 8. (1) («) The Committee may advise the Treasurer on any matter referred to it by the Treasurer or any matter relating to the administration of this Act; (b) by a member of the Committee authorized in that behalf in writing by the Committee, object to any application for a licence or apply for the cancellation of any licence on any grounds on which a licence may be refused or cancelled under this Act; (c) with the consent of the Governor in Council make rules for or with respect to (i) prescribing the maximum commission or rate of commission that estate agents or (in respect of services relating to the sale by auction of real estate) auctioneers may receive in respect of services or transactions whether generally or in respect of specified areas or services or transactions or classes thereof; (ii) regulating advertising by and advertisements of agents or sub-agents; (iii) regulating the giving of deposits to and the taking of deposits by agents and sub-agents and the amounts or rates of such deposits, and regulating or prescribing the form of documents evidencing the receipt thereof; (iv) prescribing standard forms of contracts to give effect to agreements negotiated by agents or sub-agents and the use thereof and permissible variations in such forms and prohibiting or restricting the use of other forms to give effect to such contracts ; (v) prescribing educational standards and qualifications for agents and courses of instruction and examinations and permissible equivalents; (vi) prescribing rules of professional conduct for agents and sub-agents;

9 1958. Estate Agents. No (vii) prescribing any matter which by this Act is required or permitted to be prescribed by rules of the Committee. (2) If any agent or sub-agent, but not for or in expectation Modification of any fee gain or reward (whether the fee gain or reward is or pmrfjss'ion is expected to be direct or indirect) f r 93" ce/ "" (a) fills up or obtains a signature to any contract prepared by a barrister or solicitor or any standard form of contract approved by the Council of the Law Institute of Victoria; or (b) in accordance with and subject to rules made under sub-paragraph (iv) of paragraph (c) of sub-section (1) of this section fills up or obtains a signature to any standard form of contract prescribed by such rules he shall not by reason only thereof be guilty of an offence against, or of contempt of the Supreme Court under, section ninety-three of the Legal Profession Practice Act (3) All such rules shall be published in the Government Publication Gazette and shall be laid before both Houses of Parliament ofrules - within fourteen days after the making thereof if Parliament is then sitting and if Parliament is not then sitting then within fourteen days after the next meeting of Parliament and a copy thereof shall be posted to each member of Parliament. PART III. LICENCES. 9. (1) Subject to this Act no person (either by himself or Estate agents as a member of a partnership) unless he is a licensed estate ^ ^"g,"**,' 1 ' agent (a) shall exercise or carry on or advertise notify or state that he exercises or carries on or is willing to exercise or carry on the business of or shall act as an estate agent; or (b) shall in any way hold himself out to the public as ready to undertake for payment or other remuneration (whether monetary or otherwise) any of the functions of an estate agent. (2) Where a corporation carries on the business of an estate Provision as agent such corporation shall be a licensed estate agent for the orporations. purposes of this Act if some person appointed in writing by the corporation holds an estate agent's licence on its behalf, but no person shall be eligible to hold an estate agent's licence on behalf of more than one corporation.

10 Estate Agents. No sub-agents to be licensed. * No s. 10. toijsid 810 sub-'atents. Ac 10. (1) Subject to this Act (fl) no person unless he is the holder of a sub-agent's licence shall be or act as a sub-agent for any licensed estate agent; (b) no person shall be or act as a sub-agent for any person who should be but is not the holder of an estate agent's licence. (2) Nothing in this Act shall be construed as requiring any licensed sub-agent, so far as he performs for any licensed estate agent any of the functions of an estate agent and is duly authorized thereunto by such agent, to hold an estate agent's licence under this Act, or as requiring any licensed estate agent to hold a sub-agent's licence under this Act. obtsn'ucv 0 * * (1) ^ P erson (whether on his own behalf or on behalf No s. ii; * a corporation) shall be eligible to apply for or to be granted No. 6i67s. 4.' an estate agent's licence, whether a new licence or by way of renewal or transfer, unless he is not less than twenty-one years of age and (a) he has complied with any educational standards and qualifications or their equivalent and passed any examinations prescribed by the rules; or (b) unless otherwise prescribed by the rules, he has within the five years immediately preceding his application for a licence held a sub-agent's licence for at least three years; or (c) he has within the period of five years immediately preceding his application held a real estate agent's licence (whether on his own behalf or on behalf of a corporation) or certificate of exemption under the Real Estate Agents Act 1928 or an estate agent's licence under this Act or the Estate Agents Act 1956, not being a licence or certificate issued within the period commencing on the first day of May and ending on the thirty-first day of December One thousand nine hundred and fifty-six which has effect in respect of that year; or (d) he is the executor administrator or trustee of a deceased estate agent and the application is for the purpose of performing functions exercising powers or carrying out duties as such. (2) No person (a) who is for the time being disqualified under this Act from holding such a licence; or (b) in relation to whom any claim has been allowed against the Estate Agent's Guarantee Fund under Part V., unless he has refunded any amount paid

11 1958. Estate Agents. No out of the Fund in respect of such claim and a county court judge on the application of such person declares him to be no longer ineligible shall be eligible to apply for or to be granted an estate agent's licence or a sub-agent's licence whether a new licence or by way of renewal or transfer. 12. (1) Subject to this Act every person who desires to Application obtain an estate agent's licence shall lodge with the clerk of petty agent'*" sessions for the court nearest to his place of business or (where {^"^j, 2 he carries on business at more than one place) his principal place of business an application in duplicate in the prescribed form, and the clerk of petty sessions shall forthwith send to the registrar the duplicate copy of the application and of the testimonials hereinafter mentioned. (2) Such application shall (a) state the place or places of business of the applicant which he desires to be recorded as a registered office for the purpose of this Act and in addition (i) in the case of an application by a member of a partnership the names and addresses of all the partners; (ii) in the case of an application on behalf of a corporation the addresses of the principal office and every branch or agency of the corporation in Victoria and the names and addresses of the members of the governing body of the corporation and, where the members of the corporation do not exceed five in number, the name and address of every member of the corporation; (b) contain such other particulars as are prescribed; (c) be accompanied by three testimonials in duplicate signed by different reputable persons as to the charaoter of the applicant; (d) be accompanied also by a certificate of the registrar that the applicant is under the last preceding section eligible to apply for a licence; (e) be delivered to the clerk of petty sessions at least twenty-one days before the day mentioned in the application as the day on which the application will be. made. 13. (1) Subject to this Act every person who desires to Application obtain a sub-agent's licence shall lodge an application in duplicate sub-agenfs in the prescribed form and containing the prescribed particulars N^g, 13

12 Estate Agents. No Gram and effect of with the clerk of petty sessions for the court nearest to the place where the applicant resides; and such clerk shall forthwith send to the registrar the duplicate copy of such application and of the testimonials hereafter mentioned. (2) Such application shall (a) specify an address within Victoria which he desires to be recorded as his registered address for the purposes of this Aot to which all communications and notices may be addressed; (b) be accompanied by three testimonials in duplicate signed by different respectable persons as to the character of the applicant and a certificate signed by an estate agent that he proposes to employ the applicant in his business if the licence is granted; (c) be delivered to the clerk of petty sessions at least twenty-one days before the day mentioned in the application as the day on which the application will be made. 14. (1) The court of petty sessions shall subject to this Act r NTS989S i4- ( a ) cons ider every such application for an estate agent's NO! 6i57 ' ' licence or sub-agent's licence and any objection (1> - thereto; (b) if satisfied that the applicant is eligible to be the holder of a licence and is of good character, grant and cause to be issued to him a licence in the prescribed form. (2) Every such licence («) shall take effect as on and from the day (not being earlier than the day of payment of the prescribed fee) stated in that behalf in the licence; (6) shall, unless cancelled or surrendered pursuant to this Act, continue in force until the thirty-first day of December in the year for which it is issued and no longer; (c) subject to this Act shall authorize the estate agent or sub-agent thereby licensed to be and act as (i) an estate agent in all parts of Victoria; (ii) (as the case may be) a sub-agent for a licensed estate agent in all parts of Victoria J during the currency of the licence. '

13 1958. Estate Agents. No (3) An estate agent (including a person who holds a licence on behalf of a corporation) or sub-agent may at any time surrender his licence by notice in writing addressed to the registrar accompanied by the licence, and such surrender shall be effective as on the date of the receipt of the notice by the registrar. 15. (1) Subject to this section, in any year Applications for estate (a) any person who is a licensed estate agent; usssby auctioueers, (b) any person who has obtained an auctioneer's licence applications under the Auction Sales Act 1958 for the ensuing S'uSIEe? 1 year and is eligible to be granted an estate agent's No s. is. licence; (c) any person who is a licensed sub-agent may apply for and be granted (i) in the case of paragraphs (a) and (b) an estate agent's licence; (ii) in the case of paragraph (c) a sub-agent's licence for the ensuing year. (2) Every such application shall be made in duplicate in the prescribed form and shall together with the prescribed fee and (in the case of a licensed estate agent or sub-agent) his then current licence be lodged, at least twenty-one days before the latest day appointed for the holding of the court in the current year, with the clerk of the court of petty sessions nearest to the place or principal place of business of the applicant or (in the case of an application for a sub-agent's licence) to the place where the applicant resides; and notwithstanding anything in this Act the appropriate licence shall, if (in the case of an application pursuant to paragraph (b) of sub-section (1) of this section) the applicant is eligible to be granted the licence, and (in any case) unless notice of objection is lodged by any person (including the registrar and the Committee) pursuant to this Act, be granted and caused to be issued by the court as of course although the applicant does not appear personally or by anyone on his behalf. (3) The clerk of the court shall send the duplicate copy of every application under this section to the registrar forthwith upon the lodging thereof. (4) In the event of any notice of objection being duly lodged the application and every such objection shall be heard and determined as far as may be in all respects as other applications for licences.

14 Estate Agents. No Transfer of estate agent's licence. No. 59S9 s. 16. Procedure at hearing of applies dons. Objections. No s (1) The court of petty sessions nearest to the place or principal place of business of the applicant may (by endorsement of the licence) upon application in the prescribed form for the transfer of an estate agent's licence (a) by a licensed estate agent or the legal personal representative of a deceased licensed estate agent or the official receiver trustee or assignee of a bankrupt licensed estate agent grant a transfer of the licence to any eligible person approved by the court in that behalf; or (b) on behalf of a corporation grant a transfer of the licence from a person holding or a deceased person who held it on behalf of the corporation to any eligible person to hold it on its behalf: Provided that an estate agent's licence granted to a person on his own behalf shall not be transferable to any person on behalf of a corporation and a licence granted to any person on behalf of a corporation shall not be transferable to any person on his own behalf. (2) Every such application shall be lodged in duplicate with the clerk of the court who shall forthwith send to the registrar the duplicate copy of such application and of the testimonials hereinafter mentioned. (3) Objections to any such application may be received and the application and objections (if any) shall be heard and determined as far as may be in all respects as if the application were an application for the grant of a licence; but no transfer shall be of any force or effect until the licence is endorsed as aforesaid and the fee for the transfer is paid. (4) No application for the transfer of an estate agent's licence shall be considered by the court unless there have been lodged with the application three testimonials in duplicate signed by different reputable persons as to the charaoter of the proposed transferee and a certificate of eligibility issued by the registrar. 17. (1) The clerk of the court forthwith after the receipt of any application under this Part shall cause a notice thereof in the prescribed form to be posted in a conspicuous place inside and also outside the building in which the court is to be held and shall keep the notice so posted until the day for the hearing of the application; and the clerk shall forthwith send the original of any testimonial aforesaid to the officer in charge of the police district in which the court is situate for investigation and report. (2) Any person (including the registrar and the Committee) who wishes to object to any application shall (a) lodge with the clerk of petty sessions a notice in the prescribed form of his objection and of the grounds thereof;

15 1958. Estate Agents. No (b) cause a copy of the notice to be served personally or by post upon the applicant at least three days before the hearing of the application. (3) The various grounds upon which any such objection may be made are (a) that the applicant is not eligible to be granted the licence; (b) that the applicant is not of good character; (c) that the applicant has been guilty of such conduct as an agent or sub-agent as renders him unfit to hold such a licence; (d) that the applicant has contravened or failed to comply with any provisions of this Act or the regulations or rules; (e) that the applicant has become bankrupt in circumstances which involve moral turpitude or fraud on his part; or (/) that the applicant has been convicted of a felony or serious offence and if the court is satisfied as to the truth of the objection and, in the case of an objection on a ground referred to in paragraph (d) (e) or (/) of this sub-section, is of the opinion that in the circumstances a licence should not be granted, the court shall refuse the application. (4) If at the hearing of the application there is brought before the court any objection of which due notice has not been given or of which a copy has not been served on the applicant as prescribed by this section the court if it thinks that the objection is one that should be considered may adjourn the hearing of the application to such day as it thinks fit. (5) On the hearing of any application under this Part the court shall, if any objection to the application has been lodged or brought before the court, have jurisdiction to determine what costs (if any) shall be paid to or by the objector or the applicant respectively and to order that such costs be paid: Provided that no order for costs shall be made against the registrar or the Committee. (6) Any person who feels aggrieved by any order of the court under this section may appeal to a court of general sessions of the peace against the order in the same manner as a person may appeal who is ordered by a court of petty sessions to be imprisoned.

16 Estate Agents. No Lost licences. No. S9S9 s. 18. Cancellation of licences on information. No s. 19. Cancellation of licences in other cases No s In any case where satisfactory proof is given of the loss or destruction of the original the court which granted a licence may on payment of the prescribed fee order the issue of a duplicate licence. 19. (1) Any agent or sub-agent may on the information of any person (including the registrar or any member of the Committee authorized in that behalf by the Committee) be summoned before a court of petty sessions to show cause why his licence should not be cancelled and why he should not be disqualified either permanently or temporarily from holding a licence (a) on the ground that he improperly obtained a licence contrary to the provisions of this Act; or (b) on any ground on which an objection may be made to an application for a licence. (2) Upon being satisfied of the truth of any of the grounds aforesaid the court if it thinks fit may order that such agent or sub-agent be disqualified either permanently or for such period as the court specifies from holding a licence whether as an estate agent or as a sub-agent or both and that his licence be cancelled and delivered up forthwith. (3) If in any proceedings whatsoever before any court it appears that the conduct of any agent or sub-agent has been dishonest or improper the court may inform the registrar thereof, whereupon the registrar shall take any necessary action under the last preceding sub-section. (4) In any proceedings under this section the court may make such order as to costs as it thinks just: Provided that an order for costs shall not be made against the registrar or the Committee. (5) Any person who feels aggrieved by any order of the court under this section may appeal to a court of general sessions of the peace against the order in the same manner as a person may appeal who is ordered by a court of petty sessions to be imprisoned; and the court of petty sessions may if it thinks fit defer the operation of the order pending the appeal. 20. (1) Any agent or sub-agent who lets out hires or lends his licence to any other person or permits any other person to use his licence shall be guilty of an offence against this Act and, on conviction for such offence, in addition to any penalty his licence shall become absolutely void and shall be cancelled and delivered up to the court and the court may order that such agent or sub-agent be disqualified either permanently or for such period as the court specifies from holding a licence whether as an estate agent or as a sub-agent or both.

17 1958. Estate Agents. No (2) If an agent or sub-agent is convicted in any court of any indictable offence or if in any proceeding before a court to which any agent or sub-agent is a party the court is satisfied that he has been guilty of fraud and that he ought to be disqualified from carrying on the business of an estate agent or from being or acting as a sub-agent the court may order that (a) he be disqualified either permanently or for such period as the court specifies from holding a licence under this Act whether as an agent or as a sub-agent or both; and (b) his licence be cancelled and delivered up forthwith. 21. A person disqualified under this Act from holding a licence shall not, while his disqualification continues, be capable of (a) becoming or continuing a director manager or officer of any corporation which is a licensed estate agent; or (b) becoming a member of any corporation licensed under this Act or having as its purpose or as one of its purposes the carrying on of the business of an estate agent. 22. Subject to the Public Service Act 1958 there shall be a Regiswar. Registrar of Estate Agents who shall be charged with the custody N - S989 s - 22< of the record of estate agents and sub-agents and may exercise such powers and shall perform such duties as are prescribed. 23. (1) The record shall be kept in accordance with any The record, regulations prescribing the form and manner of keeping the record JJS'eis?"' 23 '' and shall contain details of all licences which are in force and s. s'(2). shall be open to inspection at all reasonable times. (2) The registrar shall (a) insert in the record the name and address of the registered office of every licensed estate agent and the name and registered address of every licensed sub-agent and the name of the estate agent by whom each sub-agent is employed. (b) remove from the record the name of every deceased person and of every person whose licence has been transferred or has expired or has been cancelled or has been surrendered and enter any changes in particulars in the record. (3) In the exercise and performance of his powers and duties under this section the registrar shall act on such evidence as in each case appears to him sufficient. Effect of disqualification. No s. 21.

18 Estate Agents. No Retains by clerks of petty sessions. No S (1) Every clerk of petty sessions shall at the times and in the manner prescribed forward to the registrar returns in the prescribed form of licences issued transferred or cancelled. (2) In every case where a licence is delivered up to a court under this Act the licence and a copy of any order of the court in relation thereto shall be transmitted forthwith by the clerk or other proper officer of the court to the registrar. Registered office and address. No. S989 s. 25. Fees for licences, Ac. No s (1) Every licensed estate agent shall have a registered office within Victoria, and every licensed sub-agent shall have a registered address within Victoria, to which all communications and notices may be addressed. (2) The situation of every such registered office and registered address shall be entered in the record by the registrar; and any change thereof shall be promptly notified in writing to the registrar by the agent or sub-agent concerned, and the registrar shall alter the record accordingly. (3) Every estate agent shall, within seven days after he employs and within seven days after ceasing to employ any sub-agent, in writing notify the registrar of such employment or cessation of employment and the registrar shall enter the fact in the record. (4) Any agent or sub-agent who carries on business without complying with the requirements of this section shall be guilty of an offence against this Act. 26. (1) The following fees shall be payable under this Act, namely (a) for each estate agent's licence for a person on his own behalf (other than a licensed auctioneer) (i) if a new licence, Fifteen pounds; (b) (c) (d) (e) (/) (ii) if by way of renewal, Ten pounds; for each estate agent's licence (whether a new licence or by way of renewal) for a licensed auctioneer, Six pounds ; for each estate agent's licence for a person on behalf of a corporation (i) if a new licence, Thirty pounds ; (ii) if by way of renewal, Twenty pounds ; for each sub-agent's licence (whether a new licence or by way of renewal), Two pounds ; for each duplicate licence, Ten shillings ; for each transfer of an estate agent's licence, Two pounds:

19 1958. Estate Agents. No Provided that where the duration of an estate agent's licence is for not more than six months the fee shall be (i) for a licence for a person on his own behalf, Ten pounds; (ii) for a licence for a person on behalf of a corporation, Twenty pounds. (2) No licence of any kind and no transfer of a licence shall Payment of be issued until the prescribed fee has been paid ; and in the case ["uvof 0 of a licence by way of renewal the fee shall be paid before the licencc '* c - expiry of the existing licence. PART IV. AGENTS AND SUB-AGENTS. 27. Every person not being a licensed estate agent who keeps unlicensed up or exhibits on or near his office house or place of business or pretending u> anywhere else or allows to remain unobliterated any sign writing as agent! ed painting or other mark implying that such office house or place N0.59s9s.27. of business is that of a person licensed to carry on the business of an estate agent shall be guilty of an offence against this Act. 28. (1) Every licensed estate agent shall paint or affix and AS to keep painted or affixed on each place of business or, in the case no«ce y on 8 of a corporation, on the principal office and on the premises of bsmes^&c. every branch or agency of the corporation in Victoria, so as to be NO. 59W S. 28. easily read from outside, his or its name and description as a licensed estate agent and (if such business is not carried on in his or its own name) the name under which he or it or the partnership in which he or it is a partner is registered under the Business Names Act (2) Every licensed estate agent shall on demand at the premises where he carries on his business and every licensed sub-agent shall on demand produce his licence to the registrar or to any member of the police force or to any person with whom such agent or sub-agent is transacting or attempting to transact any business as an estate agent or as a sub-agent (as the case may be). 29. (1) Any estate agent who publishes (whether in a newspaper or otherwise) any advertisement relating to or in connexion with his business without specifying therein his name and the address of his registered office shall be guilty of an offence against this Act. Production of licence by agent or sub-agent. Publication of name and place of business in advertisements. No. 59S9 s. 29. (2) Any person who wilfully and falsely advertises or in any False way wilfully and falsely represents that as an estate agent he has t2! senu " a particular property or business for sale shall be guilty of an offence against this Act.

20 Estate Agents. No (3) Any estate agent who knowingly publishes (whether in a newspaper or otherwise) as part of any advertisement any false statement or representation concerning any property or business which is or is stated or represented to be for sale shall be guilty of an offence against this Act. Certain persons not to be employed by agents. No s. 30. Statement of employes, sub-agents, &c, and their wage3, &c, to be kept by agents. No s. 3t. 30. (1) An estate agent shall not employ as a sub-agent any person who is not a licensed sub-agent nor shall an estate agent employ in any capacity in connexion with his business any person (a) who is for the time being disqualified under this Act from holding a licence ; or (b) whose application for a licence has been refused by a court of petty sessions, unless such an application has been subsequently granted ; or (c) in relation to whom any claim has been allowed against the Estate Agents' Guarantee Fund under Part V. or under whose fidelity bond taken out pursuant to the Real Estate Agents Act 1928 or the Business Agents Act 1930 before the commencement of the Estate. Agents Act 1956 any money has been recovered or paid to meet any claim in respect of loss covered by the said bond unless in any such case a court of petty sessions on the application of such person permits such employment; or (d) who is a known or reputed thief or cheat. (2) Subject to this section no unlicensed sub-agent or other person aforesaid shall participate or be in any way concerned in the business of an estate agent or in the work of a sub-agent. 31. (1) Every estate agent shall (a) make or cause to be made and keep at his registered office in Victoria a true statement in writing in the prescribed form and containing the prescribed particulars as to the name and the work or services of and the salary wages or commission paid in each month to every person employed (whether as an employe or a sub-agent or otherwise) by him in connexion with his business as an agent; and (b) produce such statement for inspection during office hours whenever demanded by the registrar or by a member of the police force of or above the rank of sergeant or by any person authorized in writing by the registrar or by any such member of the police force.

21 1958. Estate Agents. No (2) Any agent who makes any false entry in any such statement shall be guilty of an offence against this Act. 32. (1) Notwithstanding anything in this Act or any law sub-agent to the contrary, no sub-agent shall perform for any estate agent IgemVbe any of the functions of an estate agent unless such sub-agent was by'sfm." 4 theretofore lawfully authorized in writing thereunto by such No agent. (2) No sub-agent shall accept or undertake employment with sub-agent any estate agent at any time when he is employed by any other?ormore 0 than estate agent. oneagem - (3) Any sub-agent who makes any false representation J; ai^senta. (whether verbally or in writing or by conduct) to any person to tionof, ty an the effect that such sub-agent is employed by or authorized to act offence. as a sub-agent for any specified estate agent shall be guilty of an offence against this Act. 33. (1) An estate agent shall not be entitled to sue for or Restriction on recover or retain any commission for or in respect of any to 8 recover!jr t transaction unless commission. (a) at all material times in relation to the transaction he NS:Sii?». 3 3 ; is the holder of an estate agent's licence ; g* Wt (c) ' (b) his engagement or appointment to act as agent in respect of such transaction is in writing signed by the person charged or to be charged with the payment of the commission or his agent or representative; (c) such written engagement or appointment is held by him before he has done everything required of him under the terms of his engagement or appointment to be entitled to commission; and (d) before or at the time of his engagement or appointment he gives to the person charged or to be charged with the payment of the commission or his agent or representative a copy of such of the rules made by the Committee prescribing the maximum commission or rate of commission as are applicable to the transaction: Provided that paragraphs (b) and (c) of this sub-section shall not apply in respect of any transactions or classes of transactions prescribed by the rules. (2) Any estate agent who for or in respect of any service or offence to transaction or any auctioneer who for or in respect of the sale by e'swor auction of any real estate demands receives or retains from any c"ossfraton. money received by him an amount by way of commission or

22 Estate Agents. No No contracting out. otherwise which is in excess of or not included in the appropriate maximum commission or rate prescribed shall be guilty of an offence against this Act; and the court, in addition to imposing any penalty, may order the agent or auctioneer to refund any excess or improper amount received or retained by him. (3) Any covenant agreement or condition whereby any person agrees to pay or allow to an estate agent or auctioneer any amount by way of commission or otherwise which is in excess of or not included in the appropriate maximum commission or rate so prescribed, or whereby any person agrees to waive or surrender any right or remedy which he may have in respect of any such excess or improper amount received or retained by an estate agent or auctioneer or, in any event, any covenant agreement or condition whereby any person agrees to waive or surrender any right or remedy which he may have against an estate agent or auctioneer under this Act shall be absolutely void and of no effect whatsoever. Representations, &c respecting availability of finance. 34. (1) An auctioneer who sells by auction, or an estate agent who as such sells, any real estate or business shall give to the purchaser a statement in writing in compliance with the NO 5989 s 34j requirements of this section and obtain from the purchaser an NO! 6157 s!7. acknowledgment in writing of the receipt of such statement. (2) Every such statement shall (a) describe so that it can be readily identified the real estate or business to which it relates; (b) state the name and address of the seller and purchaser respectively; (c) state whether or not the auctioneer or agent has (by himself or by any employ^ or sub-agent) made or offered to the purchaser any representation promise or term, in respect of the availability of finance for defraying wholly or in part the purchase price; (d) if any such representation promise or term has been so made or offered, state clearly the particulars of that representation promise or term and whether the finance is to be provided by the auctioneer or agent or by way of terms by the seller or from some other source; (e) state the date on which the statement is given; and (/) be signed by the auctioneer or agent or by a person thereunto authorized in writing by the auctioneer or agent.

23 1958. Estate Agents. No (3) Every such statement shall be given by the auctioneer or agent to the purchaser before the purchaser signs any contract agreement or document whatsoever legally binding or intended legally to bind the purchaser in respect of the sale. (4) If such a statement is not so given the purchaser may at his option by notice in writing given to the seller or to the auctioneer or agent (a) within three months after he first signs any contract agreement or document in respect of the sale; and (b) before the purchaser has (i) paid the whole of the purchase money; or (ii) taken possession of the property; or (iii) by writing under his hand accepted title to the property avoid any such contract agreement or document, and in any civil proceedings arising out of or connected with any such contract agreement or document the onus of proving that the statement was duly given shall lie upon the party so alleging. (5) (a) If in respect of any such sale (i) finance is not made available to the purchaser in compliance in every respect with any representation promise or term referred to in any statement given to the purchaser pursuant to this section; and (ii) the purchaser has not already paid the whole of the purchase money or taken possession of the property or in writing accepted title to the property the purchaser, if he has done all things reasonably required to be done to obtain the finance, may by notice in writing given, within three months after he first signs any such contract agreement or document in respect of the sale, to the seller or to the auctioneer or agent avoid any such contract agreement or document. (b) Upon any such avoidance, the seller and the auctioneer or agent shall be liable jointly and severally for the repayment to the purchaser of all money paid by the purchaser under the contract agreement or document and such money shall be recoverable by the purchaser accordingly as a civil debt recoverable summarily in a court of petty sessions or in any court of competent jurisdiction. (c) Where an auctioneer or agent has under this sub-section been required to pay and has paid any money to the purchaser such money, to the extent of any amount received by the seller in respect of the transaction, shall be recoverable by the auctioneer or agent from the seller as a civil debt recoverable summarily in VOL. III. 3

24 Estate Agents. No a court of petty sessions or in any court of competent jurisdiction unless the seller proves to the satisfaction of the court that the representation promise or term as to the availability of finance was made or offered without his knowledge connivance or consent. (6) Where a representation promise or term to which this section applies is made or offered without the knowledge connivance or consent of the seller, the seller may recover from the auctioneer or agent concerned any money paid under the contract and not received by the seller which the seller has repaid to the purchaser, and in addition any damage suffered by the seller consequent on the avoidance by the purchaser of the contract. (7) Every contract or agreement made or entered into with intent, or the effect of which would be, to evade or avoid the operation of any provision of this section shall to the extent of such evasion or avoidance be absolutely void and of no legal effect whatsover. (8) An auctioneer or agent who, being thereunto required by the provisions of sub-section (1) of this section, fails to give to a purchaser of any real estate or business a statement in writing in compliance with the requirements of sub-sections (2) and (3) of this section shall be guilty of an offence against this Act and liable to a penalty of not more than Two hundred pounds. Copy of contract, &c, to be delivered to person signing. No s. 35; No s When an estate agent (whether by himself or by an employe or sub-agent) secures the signature of any person to any contract agreement or other document pertaining to the sale purchase or exchange of any property or business or of any interest therein or of the good-will of any business he shall at the time the signature thereto is obtained deliver a copy of the agreement document or contract to the person signing it and obtain from such person an acknowledgment in writing of the receipt of such copy. Restriction on sole agency. No s. 36; No s (1) An estate agent shall not accept or undertake any appointment or engagement to act as sole agent in respect of any transaction (other than the collection of rents or management of a property) for a period that is or may be greater than thirty days from the date of the appointment or engagement, but an agent may accept extensions of any appointment or engagement to act as sole agent from time to time for a period not exceeding in the case of any such extension thirty days. (2) The last preceding sub-section shall not apply in respect of an appointment or engagement to act as sole agent for the sale of the allotments in any subdivision of land comprising not less than three allotments the plan of which subdivision has been sealed by the council of the municipality.

25 1958. Estate Agents. No (1) (a) No estate agent shall whether directly or Restriction on indirectly or by himself or any partner or sub-agent purchase or purchasing be in any way concerned or interested in the purchase of any real f, rop!^ estate or business which he is commissioned by any principal to sell without having previously obtained the consent in writing of such principal to such a purchase. (b) Any person who is convicted of an offence against this sub-section shall, in addition to any penalty imposed by the court, be ordered by the court to account for and pay over to his principal all profits resulting or which in the opinion of the court may result from the purchase and any subsequent dealing with any such real estate or business. (2) No employe of an estate agent shall purchase or be in any way interested or concerned in the purchase of any real estate or business which his employer is by any owner thereof commissioned to sell without having previously obtained the consent in writing of such owner to such purchase. (3) An estate agent shall not charge any commission to and shall repay any commission paid by the principal in respect of any real estate or business which he is commissioned to sell in any case where in relation thereto he has been guilty of an offence against sub-section (1) of this section. PART V. FUNDS AND ACCOUNTS. 38. (1) Every estate agent who as such (whether himself or Amplication by any employe or sub-agent) receives any money on behalf of money, any person in respect of any transaction or who holds any money go. WOT S. M: so received as a stakeholder or in trust pending the completion of any transaction (rt) shall pay such money into a bank to a trust account in the name of the agent (i) if trading bank facilities are available within ten miles of the place of business of the agent before the end of the next business day after the day on which the money is received; (ii) in any other case before the end of the third business day after the day on which the money is received; and (b) shall not withdraw such money therefrom except for the purpose of payment to the persons entitled thereto (including, where the ownership of any chattels stock or book debts has been agreed to be transferred as part of such transaction, any person other than the parties to the transaction who has any right as mortgagee or lienee in any of such chattels stock or book debts) or such persons' solicitors or at such persons' direction.

26 Estate Agents. No As to availability of such money, atttachment, &c. Saving as to banks. As to money received by sub-agents. Liability of principal for certain acts, &c, of subagent. No s. 39. (2) All such money shall be kept and accounted for separately from money of the agent. (3) Subject to any obligations of the agent as a stakeholder or trustee as aforesaid money so paid into any such trust account shall not be available for the payment of any debt or claim of any person other than the persons entitled thereto as aforesaid or be liable to be attached or taken in execution under the order or process of any court at the instance of any such other person. (4) Save as otherwise expressly provided in this Act a bank shall not be under any obligation to control or supervise the operations upon any such trust account or to see to the application by the agent of any money drawn out of any such trust account. (5) It shall not be necessary for any licensed sub-agent to pay money received by him into a bank to a trust account pursuant to this section ; but every sub-^agent shall pay forthwith to the licensed estate agent for whom he is acting as a sub-agent or to a trust account specified by the agent all money received from or on behalf of any person by the sub-agent in respect of any transaction in his capacity of sub-agent for the licenced estate agent. 39. Every licensed estate agent shall be personally liable for all money received from or on behalf of any person by any sub-agent acting as a sub-agent for him in respect of any transaction whether or not the sub-agent is acting within the terms of his authority. Duty to keep accounts of trust money received, &c. No s. 40; No s. 11 (a). Receipts. 40. (1) Every estate agent shall (a) keep full and accurate accounts of all money received or held by him on account of any other person and of all payments made by him of that money; (b) before the end of the next business day after the day on which the money is received or paid enter in the accounts particulars of the amount so received or paid and the person from whom it was so received or to whom it was so paid ; (c) keep the accounts in such a manner that they can be conveniently and properly audited ; (d) correctly balance the accounts at the end of each month. (2) (a) Subject to paragraph (e) of this sub-seotion when an estate agent receives money for or on behalf of any other person he shall forthwith give to the person paying the money a receipt for it as prescribed by this sub-section specifying briefly the subject matter or purpose in respect of which the money was received, and shall retain legible duplicates of the receipt.

27 1958. Estate Agents. No (b) Receipts issued under this sub-section shall be taken from bound books containing not less than fifty receipts and arranged so that a carbon duplicate of each receipt issued is retained in the book. (c) The estate agent shall produce the retained duplicate in the appropriate books to the auditor at every audit and at such other times as the auditor reasonably requires. (d) The receipts and duplicates thereof shall be so numbered or otherwise marked that every receipt can be identified and so that the receipt and duplicate have the same number or mark. (e) This sub-section shall not apply in the case of an agent if the auditor for the time being employed by the agent reports to the registrar that he is satisfied with the system employed by the agent and that the receipt books are so kept and entered up as to enable the accounts to be properly and conveniently audited and the registrar approves of the system employed by the agent of recording the receipt of money. 41. (1) (a) Within three months after the thirtieth day of An J f June of each year every person who carried on business as an estate trust agent during the whole or any part of the financial year ended on the said thirtieth day of June (i) shall cause his accounts of trust money for that year or part of a year to be audited by a person qualified as prescribed by this section ; (ii) shall forthwith after the completion of the audit obtain from the auditor a report of the result of the audit; and (iii) shall forthwith send or deliver the report together with the declaration to the registrar. (b) Forthwith after completing an audit the auditor shall deliver his report and a signed copy of it to the agent concerned. (c) The agent shall retain the signed copy of the report and produce it on demand pursuant to this section. accounts. No s. 41; No s. 11 (6). (2) No person shall be qualified to act as an auditor under Qualified this section auditors - (a) unless he is a practising public accountant or, if the registrar is satisfied that no such accountant is conveniently available, a competent accountant or other competent person who is nominated by the estate agent whose trust account is to be audited and who is approved by the registrar ; or

28 Estate Agents. No Variation ol date of audit. Interested persons disqualified i auditors. Selection of auditors. Audit of business carried on at more than one place. Revocation of approvals, &c. (b) if he is or at any time within two years before the last day of the period in respect of which the audit is to be made has been a clerk servant or partner of the estate agent or of any partner of the estate agent whose trust account is to be audited. (3) (a) Notwithstanding anything in this section an estate agent may apply in writing to the registrar to fix some date other than the thirtieth day of June as the date to which his trust accounts are to be audited and the registrar may in his discretion permit the agent to substitute such other date for the thirtieth day of June. (b) The registrar may upon giving not less than one year's notice to the agent revoke any permission granted under this sub-section. (c) When permission is granted under this sub-section the registrar shall fix the period in respect of which the first audit shall be made, and the permission may be given upon such conditions with respect to the time within which the first or any subsequent audit shall be made or otherwise as the registrar thinks fit. (d) So long as the permission remains to any conditions which may be imposed relation to the agent concerned be read as if substituted for the thirtieth day of June. (e) When any date has been substituted of June under this sub-section the date so be further changed except by permission of in accordance with this sub-section. in force and subject this section shall in such other date was for the thirtieth day substituted shall not the registrar granted (4) No person shall audit the accounts of an estate agent if he is an employe or partner of that estate agent or if he is an employ6 of any other estate agent actually in practice, or if he is himself an estate agent carrying on business as such. (5) Subject to the provisions of this section the auditor by whom the audit of and reports on an estate agent's accounts are to be made shall be selected by the agent. (6) If an estate agent carries on business at more than one place the registrar may give such directions as he thinks fit for separate audits of the accounts of trust money in respect of the business carried on at each place or for the acceptance by the auditor of the certificates of some person approved by the registrar with respect to the examination of the accounts of trust money kept at any branch of the business. (7) The registrar may if in his opinion just cause exists for doing so vary or revoke any approval direction permission or authority granted or given by him under this section.

29 1958. Estate Agents. No (8) (a) For the purpose of any audit or report under this Duties of agents with section every estate agent shall as and when the auditor so requires respect to audit. produce to the auditor his books and all papers accounts documents and securities in his possession custody or power in any way relating to any money received by the agent for or on behalf of any other person and shall furnish the auditor with all such information and particulars as he reasonably requires. (b) The auditor may examine such books papers accounts documents and securities at any time either during or after the end of the period in respect of which the audit is made. (9) The manager or other officer for the time being in charge Duty of banker with of the bank in which the agent has his trust account shall on respect to audit. request of the auditor produce all such books papers accounts documents and securities as are reasonably necessary for the purpose of the audit. (10) Every auditor shall include in his report a statement Contents of auditors' as to reports. (a) whether the accounts of trust money of the estate agent have in the opinion of the auditor been regularly and properly written up ; (b) whether the accounts have been ready for examination at the periods appointed by the auditor ; (c) whether the agent has complied with the auditor's requirements ; (d) whether the agent's accounts are in order or otherwise ; (e) any matter or thing in relation to such accounts which should in the opinion of the auditor be communicated to the registrar. (11) (a) Every estate agent shall prepare and certify under statement of his own hand and produce to the auditor a statement setting forth he d"by agent in detail particulars of okrssns. (i) moneys on the last day of the period to which the audit relates held by the agent for or on behalf of any other person ; and (ii) negotiable or bearer securities or deposit receipts in the name of the agent which represent money drawn from the agent's trust account and which are held by the agent on that day. (b) The auditor shall examine the statement and endorse on it a certificate as to whether or not it is correct and deliver it to the agent. (c) The statement so delivered shall be retained by the agent and produced on demand to the auditor making the next succeeding audit of the agent's accounts together with a signed copy of the report of the last preceding audit.

30 Estate Agents. No Auditor's report where agent has not complied with requirements. auditst by Right of persons beneficially interested to obtain information. (d) Where the estate agent's accounts are being audited for the first time or where for any other reason no statement containing the particulars set out in paragraph (a) of this sub-section and relating to the previous period of audit is available for the purpose of audit the agent shall in lieu thereof make out and produce to the auditor before the making of his report a statement containing the like particulars as to money and negotiable securities held on the first day of the period to which the audit relates. (e) Every statement made under this sub-section shall be verified by the statutory declaration of the agent or, in the case of a partnership, by the statutory declaration of one of the partners or, in the case of a corporation, by the person holding the licence on behalf of the corporation. (12) If an auditor in the course of auditing an estate agent's accounts discovers that the accounts are not kept in such a manner as to enable them to be properly audited or discovers any matter which appears to him to involve dishonesty or a breach of the law on the part of the agent, or discovers loss or deficiency of trust money or failure to pay or account for any such money or to comply with the provisions of this section, he shall fully set out the facts so discovered by him in the report to be delivered to the registrar and shall furnish signed copies of the report to the agent. (13) (a) Except in so far as this section otherwise provides an auditor shall not divulge to any person or in any proceedings any information which he has obtained in the course of conducting any audit under this section. (b) An auditor shall not be guilty of a breach of this sub-section by reason only that he discloses information (i) by means of or in a report made pursuant to this section ; or (ii) in- or for the purpose of any legal proceedings arising out of any such report or instituted in connexion with the accounts of the agent to whom the information relates. (14) (a) On request by any person interested in any money or securities held or which ought to be held or which have been received by an estate agent the registrar may disclose to such person or his solicitor such portion of any report of an auditor, or of any statutory declaration statement or other document delivered to the registrar under this section, as in the opinion of the registrar affects such person.

31 1958. Estate Agents. No (b) A report of an auditor under this section or a statutory declaration statement or other document delivered to the registrar under this section shall be available in the hands of the registrar for inspection by the auditor appointed to audit the accounts of the same estate agent for the succeeding year. (15) The fees payable by an estate agent to an auditor for {^ f era - an audit under this section shall be such as are agreed on between auditor, the agent and the auditor. (16) An estate agent who in the course of any financial year Agents having neither received nor held any money for or on behalf of any?o a a udit unts other person shall be deemed to have complied with this section if within the period of three months after the end of that year he makes and delivers to the registrar a statutory declaration to that effect. (17) Where the accounts of trust money are kept by a Accounts of partnership of estate agents an audit of those accounts under this firn1, section and the certificates and report of the auditor thereon shall operate as regards those accounts as an audit certificate and report in relation to each estate agent who is a member of that partnership. 42. (1) Every estate agent shall at all reasonable times at Inspection, his registered office keep open for inspection by the registrar or registry." by any other person authorized in writing in that behalf by the No s.4z registrar all of his trust accounts and all other accounts books and records required by this Act to be kept by him. (2) The registrar or any other person authorized in writing in that behalf by the registrar may at any time require any estate agent (a) to produce for his inspection examination or audit (i) all trust accounts and all documents and writings (including authorities and orders to bankers) relating to the trust accounts of the agent or such trust accounts documents and writings as aforesaid as the auditor specifies ; (ii) all books accounts and records required by this Act to be kept by the agent which the agent is not exempted by this Act from keeping or such books accounts and records as aforesaid as the auditor specifies ; (iii) all contracts agreements and other documents whatsoever relating to any transaction by or with the agent in connexion with his business as estate

32 1958. Estate Agents. No agent in the possession custody or control of the agent or such contracts agreements or other documents as aforesaid as the auditor specifies ; and (b) to answer any questions or supply any information with respect to any book account document writing record contract or agreement referred to in this sub-section or any entry therein. (3) The registrar or any other person authorized in writing in that behalf by the registrar may at any time require any person who has the possession custody or control of any book account document writing record contract or agreement relating to any transaction by or with any agent in connexion with his business as estate agent to produce it for inspection examination or audit and to answer any questions or supply any information with respect thereto or with respect to any entry therein. (4) (a) The registrar or any other person authorized in writing in that behalf by the registrar may inspect examine or audit all books accounts documents writings records contracts and agreements referred to in sub-section (2) of this section and may take such notes or copies thereof or extracts therefrom or of any entries therein as he considers necessary. (b) Where the registrar or any other person authorized as aforesaid considers it necessary to do so for the purpose of obtaining evidence for production in possible subsequent proceedings against any estate agent he may impound or retain any book account document writing record contract or agreement inspected by him in pursuance of this sub-section but the person entitled thereto shall in lieu thereof be entitled within a reasonable time to a copy certified as correct by the person impounding or retaining it and such certified copy shall be received in all courts as evidence of equal validity to the original. (c) Any book account document writing record contract or agreement impounded or retained under this sub-section may be detained for a period of six months or, if within that period there have been commenced proceedings for the purpose of which it was impounded or retained until the final determination of those proceedings including any appeal. (5) No person shall (a) obstruct threaten or intimidate the registrar or any authorized person in the exercise of his powers authorities or functions or the discharge of his duties under this section or attempt to do so; (b) when required under this section to produce for inspection examination or audit any book account document writing record contract or agreement, fail to produce it in accordance with such requirement;

33 1958. Estate Agents. No (c) when required under.this section to answer any question or supply any information with respect to any book account document writing record contract or agreement or with respect to any entry therein, give an answer or supply information which is false or misleading or, knowing or being in a position to know the answer or information required, fail to answer that question or supply that information ; or (d) retake or attempt to retake any book account document writing record contract or agreement impounded or retained under the authority of this section. (6) Any requirement under this section may be made (a) verbally; or (b) by writing addressed to the person to or on whom it is made and delivered to him personally or sent by registered post to him at his registered office or registered address or place of employment or residence. (7) The registrar or any person authorized under this section may communicate to any client of the estate agent a report of the result of any inspection examination or audit under this section if and so far only as it directly concerns such client. (8) It shall be the duty of the manager or other principal officer of a bank with which any estate agent has deposited any money, whether in his own account or in any general or separate trust account, to disclose each and every such account to the registrar or any person authorized under this section upon demand in writing delivered to him personally and to permit the registrar or such person to inspect and make and take away with him a copy of or an extract from any such account or of or from any book account document or writing relating to such account. (9) In this section " Trust account" includes any account of or with respect «Trust to any moneys received by a person in respect of account. any transaction by him as an estate agent; " Estate agent" includes, as well as lioensed estate agent, «Estate any person whose estate agent's licence has expired agent. ' or has been cancelled. 43. (1) There shall be kept in the Treasury a Fund to be Estate called the " Estate Agents' Guarantee Fund " (hereinafter referred okmee to as " the Fund "). F und _ (2) Into the Fund there shall in respect of each financial year be paid all moneys received by way of fees under Part III. No s. 43.

34 Estate Agents. No (3) Subject to this Act there shall be paid out of the Fund on the approval of the Treasurer the amount of all claims including costs allowed or established in relation to any person who held an estate agent's licence current at the date on which the cause of action originated insofar as in the opinion of the Treasurer such claims are referable to losses incurred by the claimant by reason of the non-compliance of such person or of any sub-agent or employe of such person with the provisions of this Part. (4) No claim shall be allowed against the Fund the cause of which originated before the commencement of the Estate Agents Act Application to tegiitrar for compensation from Fund. No s. 44. Subrogation of registrar to rights, &c, of claimant upon payment from Fund. No s (1) Any person who wishes to claim against the Fund under the last preceding section may make an application in writing in the prescribed form to the registrar supported by affidavit or statutory declaration. (2) If the registrar admits the claim or any part thereof and certifies accordingly and the Treasurer of Victoria signifies his approval the amount so certified shall be paid out of the Fund. (3) The registrar may state a case for the opinion of a judge of county courts on any question arising out of any claim against the Fund. 45. On payment out of the Fund of any money in respect of any claim the registrar shall be subrogated to the extent of such payment to all the rights and remedies of the claimant against the person in relation to whom the claim arose or the legal personal representatives or other persons having authority to administer any estate concerned. Fund to be stabilized at 25,000. No Provision where Fund insufficient to meet claims. 46. (1) If on the thirtieth day of June in any financial year the amount standing to the credit of the Fund exceeds Twenty-five thousand pounds the excess shall be paid into the Consolidated Revenue. (2) Where the amount to the credit of the Fund is insufficient to pay the whole amount of all claims allowed in any financial year any such claim so far as it remains unpaid shall be charged against future receipts of the Fund and shall be paid out of the Fund when money is available therein. Freezing of trust accounts of defaulting agents. No s Where a claim has been made against the Fund in relation to any person who is or was an estate agent the Treasurer may by notice in writing to the manager or other principal officer of any bank with which such agent has deposited any money in any general or separate trust account direct that no money shall thenceforth be drawn from such account until further notice, and may further direct that all or any money to the credit of such

35 1958. Estate Agents. No account shall be paid into the Fund, and such manager or principal officer shall give effect to all such directions and this section shall be a sufficient authority and indemnity therefor. 48. Without affecting the operation of Division two of Part wrongful I. of the Crimes Act 1958 any estate agent who and false accounts. (a) fraudulently converts to his own use No s (i) any moneys received by him on behalf of any person in respect of any transaction in his capacity of estate agent; or (ii) any moneys so received which are held by him as a stakeholder or in trust pending the completion of any transaction or any part of any such moneys ; or (b) fraudulently omits to account for deliver or pay (i) any such moneys received by him as aforesaid on behalf of any person or any part thereof to such person ; or (ii) any such moneys received by him as aforesaid which are or were held by him as a stakeholder or in trust as aforesaid pending the completion of the transaction or any part of such moneys to the person or persons entitled to such moneys ; or (c) fraudulently renders an account (i) of any moneys received by him as aforesaid on behalf of any person or any part of such moneys ; or (ii) of any moneys received by him as aforesaid which are or were held by him as a stakeholder in trust pending ithe completion of any transaction or any part of such moneys knowing such account to be false in any material particular shall be guilty of felony and be liable, if a corporation, to a penalty of not more than One thousand pounds or, if any other person, to imprisonment for a term of not more than ten years. PART VI. MISCELLANEOUS. 49. A certificate in the prescribed form signed or purporting Proof by to be signed by the registrar stating that any person is or is not cmlfkate. or at any specified time was or was not the holder of an estate NO S agent's licence or a sub-agent's licence shall be prima facie evidence of the facts therein stated.

36 Estate Agents. No Famishing incorrect particulars. No & Any person who in any application testimonial notice or other statement made under or for the purposes of this Act knowingly makes any statement which is not correct or furnishes any particulars which are not correct or omits to furnish any particulars by or under this Act required to be furnished shall be guilty of an offence against this Act. Offences. No s. 51. Penalty for offences not otherwise provided for. Offences, &c., by two or more persons. 51. (1) Every person who contravenes or fails to comply with any provision of this Act or of the regulations or rules shall be guilty of an offence against this Act. (2) Where no penalty is specially provided for any such offence any person guilty of such offence shall be liable to a penalty of not more than One hundred pounds or to imprisonment for a term of not more than six months and in either case to a further penalty of not more than Five pounds for each day on which any such offence is continued after any conviction therefor. (3) Where two or more persons commit or knowingly authorize or permit the commission of any offence against this Act each of such persons shall be liable therefor and the liability of each of them shall be independent of the liability of the other or others. Applications and notices in the case of corporation. No s. 52. Liability of corporation, 4c. 52. (1) Where any notice or application is by or under this Act authorized or required to be given or made by any person in connexion with a licence it may in the case of a corporation be given or made on behalf of the corporation by any chairman member of the governing body director manager secretary or officer thereof or by the person appointed to take out a licence on its behalf. (2) A corporation may be guilty of and liable for any offence against this Act, and for the purposes of this Act there shall be imputed to a corporation any knowledge consent intent fraud wilfulness or falseness of any director member or officer thereof; and any person who is a director member or officer of or who is the holder of a licenoe on behalf of a corporation which is guilty of an offence against this Act shall be deemed to have committed the offence and (without affecting any liability of the corporation or of any other individual therefor) shall be liable accordingly, unless he proves that the act or omission constituting the offence took place without his consent, and that he did not know and could not reasonably have known thereof. Saving of contracts and civil liability. No s Save as otherwise expressly provided in this Act no contract or civil liability shall be affected by reason only of the fact that an offence against this Act has been committed.