Auctioneers and Agents Act Amendment Act 1975 (Qld)

1006 Q1i gnsl xt^ ANNO VICESIMO QUARTO ELIZABETHAE SECUNDAE REGINAE No. 82 of 1975 An Act to amend the Auctioneers and AgentsAct 1971-1974 in certain particulars [ASSENTED TO 16TH DECEMBER, 1975] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title and citation . (1) This Act may be cited as the Auctioneers and Agents Act Amendment Act 1975. (2) The Auctioneers and Agents Act1971-1974 is in this Act referred to as thePrincipal Act. (3) The Principal Act as amended by this Act may be cited as the Auctioneers and Agents Act1971-1975. 2. Commuseensent (1) Subject to subsection (2) this Act shall commence on a date to be fixed by Proclamation. (2) Section 17 of this Act shall come into operation on 1 April 1978.

Auctioneers and Agents Act Amendment Act 1975, No. 82 1007 3. New s. 4A. The Principal Act is amended by inserting after section 4 the following section:- " 4A. Exemptions . The Governor in Council may, by Order in Council, exempt any person or any class or classes of persons from compliance with all or any of the provisions of this Act.". 4. Amendment of s. 5 . Section 5 of the Principal Act is amended by, in subsection (I)- (a) inserting after the definition " Caravan trailer " the following definition:- " Ceerrttiifficicaatete of registration "-A certificate of registration and any renewal thereof issued or deemed to continue in force under this Act and in force at any material time; Any endorsements made under this Act on any certificate of registration shall be regarded as forming part of that certificate of registration;"; (b) in the definition " Commercial agent ", (i) inserting at the end of subparagraph (b) the following subparagraph:- "• or (ba) serving any writ, summons or other process "; (ii) inserting after subparagraph (f) the following subparagraph:- 46 or (g) is a solicitor or public accountant acting in the practice of his profession;". 5. Amendment of s. 6 and savings in respect thereof . (1) Section 6 of the Principal Act is amended by- (a) omitting subsection (2) and substituting the following subsections:- " (2) The Committee is a body corporate and shall have perpetual succession, a common seal and, subject to this Act, shall be capable of suing and being sued. (2A) All courts and persons acting judicially shall take judicial notice of the common seal of the Committee and, until the contrary is proved, shall presume that it was duly affixed to any document on which it appears. (2B) (a) The common seal shall be kept in the custody of the secretary or such other person as the Committee may determine, and shall not be affixed to any document except by authority of a resolution of the Committee and in the presence of at least one member and the secretary or such other person as the Committee may appoint for the purpose. (b) The persons in whose presence the seal is affixed shall. attest by their signatures the fact and the date of the seal being so affixed. (2c) The Committee shall consist of the Registrar and six other members appointed by Order in Council."; (b) in subsection (5), omitting the words " (in the case of a member referred to in paragraph (b) of subsection (2) of this section, from a panel of names of three qualified persons submitted by the Real Estate Institute of Queensland Inc.)"; (c) omitting subsection (6).

1008 Auctioneers and Agents Act Amendment Act 1975, No. 82 (2)'Any member of the Committee who was appointed prior to the commencement of this Act may continue in office as a member of the Committee, subject to the provisions of the Principal Act, until the expiration of his term of office and he shall be eligible for re-appointment. 6. Amendment of s. 7. Section 7 of the Principal Act is amended by omitting subparagraph (g). 7. Amendment of s. 13A. Section 13A of the Principal Act is amended by- (a) in subsection (1), (i) in paragraph (c), adding at the end thereof the' expression " or 22A " (ii) in paragraph (f), adding at the end thereof the expression " or 31A"; (iii) omitting the words " Magistrates Court " and substituting the words " District Court "; (b) omitting subsections (3) and (4); (c) in subsection (5), omitting the words " Every appeal under subsection (4) shall be by way of rehearing and the " and substituting the word " The "; (d) in subsection ( 8), omitting the words " or Stipendiary Magistrate as the case may be ". $. Amendment of s. 16 . Section 16 of the Principal Act is amended by omitting subsection (4) and substituting the following subsection:- (4) A licence shall be in the form prescribed, and shall- (a) in the case of an auctioneer 's licence, a real estate agent ' s licence , a commercial agent's licence or a motor dealer ' s licence taken out by an individual, set out- (i) the name of the licensee; (ii) his residential address; and (iii) the address of his principal place of business; (b) in the case of a corporation licence, set out- (i) the name of the corporation; and (ii) the address of its principal place of business; (c) in the case of a real estate agent's licence, commercial agent ' s licence or motor dealer's licence taken out by the holder of a corporation licence in respect of an individual, set out- (i) the name of the corporation; (ii) the address of its principal place of business; (iii) the name of the individual; and (iv) the address of the corporation's place of business at which he is in charge; (d) in the case of a manager's licence, set out- (i) the name of the manager; (ii) the address of the place of business at which he is in charge; and

Auctioneers and Agents Act Amendment Act 1975, No. 82 1009 (iii) where the business at that place is conducted for or on behalf of an individual licensee , that licensee's name and the address of his principal place of business; or (iv) where the business at that place is conducted for or on behalf of a corporation, the name of the corporation and the address of its principal place of business.". 9. New s. 22A. The Principal Act is amended by inserting after section 22 the following section:- " 22A. Suspension of licence by Committee . (1) The Committee may suspend any licence held by a licensee, either on his own behalf or in respect of an employee, upon such terms or conditions and for such period as the Committee specifies, if- (a) the Committee resolves to recommend to the Registrar that the licensee or employee or, where the licensee is a corporation, any director or the secretary thereof be prosecuted for an offence against this Act; (b) the Committee receives advice of any irregularity or deficiency revealed by an audit of the licensee 's trust account; (c) the Committee makes an appointment pursuant to section 108; (d) (in addition to any penalty imposed pursuant to section 12) the Committee finds, pursuant to that section, that a licensee has been guilty of professional misconduct; (e) the licensee or employee or, where the licensee is a corporation, any director or the secretary thereof is in default in the performance, fulfilment or satisfaction of an order made by the Committee; (f) any other event occurs that leads the Committee to believe that- (i) the licensee is not a fit and proper person to hold a licence; (ii) an employee in respect of whom a licence is held is not a fit and proper person to have a licence held in respect of him; (iii) where the licensee is a corporation, any director or the secretary thereof is not a fit and proper person to hold that office. (2) (a) The Registrar shall serve notice on the licensee or, as the case may be, the employee of any suspension pursuant to subsection (1). (b) The notice shall be in writing, shall set out the grounds for suspension and shall be served on the licensee or, as the case may be, the employee personally or by post or, where the licensee is a corporation, on the secretary of the corporation personally or by post. (3) Any suspension under this section shall operate from the time the notice is served pursuant to subsection (2), whereupon- (a) the licence shall be of no force or effect during the period of suspension;

1010 Auctioneers and Agents Act Amendment Act 1975, No. 82 (b) the licensee shall cease to act as or carry on or advertise, notify or state that he acts as or carries on or is willing to act as or carry on the business of an auctioneer, a real estate agent. a commercial agent or a motor dealer. (4) Where a licence is suspended, the licensee shall within seven days after the notice is served pursuant to subsection (2) deliver the licence to the Registrar whereupon the Registrar shall endorse on the licence the word " suspended " and the period of suspension and retain the licence until the expiration of the period of suspension.". 10. Amendment of s. 23. Section 23 of the Principal Act is amended by- (a) in subsection (l) inserting after the words " indictable offence " the words " that exhibits fraud or dishonesty on the offender's part or is against sexual morality or constitutes an assault or exhibits violence against the person on the offender's part "; (b) omitting subsection (2) and substituting the following subsection:- (2) For the purposes of subsection (1) of this section- (a) if a person is summarily convicted of an indictable offence he shall be deemed to have been convicted of an indictable offence any Act or law to the contrary notwithstanding; (b) section 19 of the Offenders' Probation and Parole Act 1959-1974 shall not apply.". 11. Amendmen t of s. 28. Section 28 of the Principal Act is amended by omitting subsection (3) and substituting the following subsection:- " (3) A certificate of registration shall set out the name and residential address of the holder of the certificate.". 12. A mendment of s. 30. Section 30 of the Principal Act is amended by, in subsection ( 1), omitting subparagraphs (d) and (e). 13. New s. 31A. The Principal Act is amended by inserting after section 31 the following section:- " 31A. Suspension of certificate of registration by Committee. (1) The Committee may suspend any certificate of registration issued to a real estate salesman, commercial sub-agent or motor salesman , upon such terms or conditions and for such period as the Committee specifies, if- (a) the Committee resolves to recommend to the Registrar that the real estate salesman, commercial sub-agent or motor salesman be prosecuted for an offence against this Act; (b) the real estate salesman , commercial sub-agent or motor salesman is in default in the performance, fulfilment or satisfaction of an order made by the Committee;

Auctioneers and Agents Act Amendment Act 1975, No. 82 1011 (c) any other event occurs that leads the Committee to believe . that the real estate salesman , commercial sub-agent or motor salesman is not a fit and proper person to hold a certificate. (2) (a) The Registrar shall serve notice on the real estate salesman, commercial sub-agent or motor salesman of any suspension pursuant to subsection (1). (b) The notice shall be in writing, shall set out the grounds for suspension and shall be served on the real estate salesman, commercial sub-agent or motor salesman personally or by post. (3) Any suspension under this section shall operate from the time the notice is served pursuant to subsection (2), whereupon- (a) the certificate of registration shall -be of no force or effect during the period of suspension; (b) the holder of the certificate of registration shall cease to act as, and during the period of suspension shall not notify that he is available for employment as, a real estate salesman , commercial sub-agent or motor salesman. (4) Where a certificate of registration is suspended, the holder of the certificate shall within seven days after the notice is served pursuant to subsection (2) deliver the certificate to the Registrar whereupon the Registrar shall endorse on the certificate the word " suspended " and the period of suspension and retain the certificate until the expiration of the period of suspension.". 14. Repeal of s. 43. Section 43 of the Principal Act is repealed. 15. Amendment of s. 62 . Section 62 of the Principal Act is amended by- (a) omitting subparagraph (a) of subsection (1) and substituting the following subparagraph- (a) any auctioneer, real estate agent or motor dealer, whether directly or indirectly by himself or by any partner or employee of his, to purchase or be in any way concerned or beneficially interested in the purchase of any property (other . than perishable farm produce) placed in his hands or in the hands of any corporation, partnership or firm of which he is a director, member or employee for sale privately or by auction or on commission by any principal without having obtained the consent in writing in the prescribed form of such principal to such purchase before the making of the agreement relating to such purchase;"; (b) omitting subparagraph (c) of subsection (1) and substituting the following subparagraph- (c) any auctioneer, real estate agent or motor dealer to charge commission to the principal in respect of any property that is taken over by such auctioneer, real estate agent or motor dealer or any employee of his as a purchaser or for his own use or in respect of any property that is the subject of a purchase in which the auctioneer, real estate agent or motor dealer is beneficially interested whether or not he has obtained the consent referred to in subparagraph (a) or (b) of this subsection.";

10 12 Auctioneers and Agents Act Amendment Act 1975, No. 82 (c) in subsection (2), omitting the words " who has received any commission in respect of the dealing the subject of that offence ". 16. Amendment of s. 64. Section 64 of the Principal Act is amended by- (a) inserting after the words " beneficially interested in " the words " the purchase of "; (b) omitting subparagraph (b) and substituting the following subparagraph :- " (b) a corporation (not being a corporation consisting of more than 100 members), body or association of persons, firm or partnership, carrying on business for profit or gain, whereof the auctioneer or real estate agent or the spouse, a parent or child of the auctioneer or real estate agent is a member or, where the auctioneer or real estate agent is itself a corporation, that corporation and the corporation on whose behalf the property is purchased have one or more members in common or one or more directors in common or a common manager, secretary or other officer or that corporation is a member of the corporation on whose behalf the property is purchased;"; (c) omitting from subparagraph (d) the words " twenty members " and substituting the words " 100 members "; (d) adding at the end of the section the following paragraph:- " To allay any doubt it is declared that any reference in sections 62, 63 and this section to auctioneer, real estate agent or motor dealer includes reference to a corporation that acts as or carries on the business of an auctioneer, real estate agent or motor dealer, as the case may be, save where the contrary intention appears in this section.". 17. Repeal of and new s. 67. The Principal Act is amended by repealing section 67 and substituting the following section:- 11 47. Prohibition on sale of land to which title is not assured. (1) No person shall sell or offer for sale any land that is subdivided into more than five allotments- (a)- (i) that if freehold land under the Real Property Act 1861-1974, is not the whole of the land contained in an existing Deed of Grant or Certificate of Title; or (ii) that if held from the Crown for an estate of leasehold is not the whole of the land contained in the existing lease or other existing instrument assuring title to the estate in that land held from the Crown or is so held subject to conditions or covenants debarring or restricting a holder of that leasehold estate therein as at the time of that sale from disposing of the estate therein held from the Crown, unless- (b) in the case of freehold land under the Real Property Act 1861-1974, there shall have been lodged in the office of the Registrar of Titles and registered by the Registrar of Titles all such plans, instruments and other documents (save a memorandum of transfer to the purchaser or a request for a separate Certificate of Title) as are required

Auctioneers and Agents Act Amendment Act 1975, No. 82 1013 under that Act to be so lodged and registered precedent to the taking out of a separate Certificate of Title under that Act containing only the land to which the sale relates; (c) in the case of a miner's homestead under the Miner's Homestead Leases Act 1913-1975 the lessee thereof as at the time of the sale has obtained the approval of the Minister for Mines to subdivide the homestead; or (d) in the case of land held from the Crown for an estate of leasehold under the Land Act 1962-1975, the holder of that leasehold estate as at the time of the sale has obtained the permission of the Minister for Lands to sell that leasehold estate. (2) Any person who contravenes this section shall be guilty of an offence against this Act and liable to a fine not exceeding $1 000 or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment, or, if the offender is a corporation, to a fine not exceeding $5 000. (3) Any covenant, agreement or condition expressed or implied in any contract, agreement or document whatsoever legally binding, or intended legally to bind, the parties, or any of the parties to any transaction in respect of the sale of any land to which this section applies, whereby it is agreed that the provisions of this section shall, in any respect, not apply in respect to that transaction, shall be void and of no legal effect whatsoever. (4) In and for the purposes of this section the term " sell " means sell, or agree to sell, or give an option for the purchase of land, or any other transaction whatsoever granting or purporting to grant to any person a right not immediately exercisable to purchase or to be given an option for the purchase of land and the term " purchase " has a corresponding meaning.". 18. Amendment of s. 70. Section 70 of the Principal Act is amended by repealing subsection (3). 19. New s. 71A. The Principal Act is amended by inserting after section 71 the following section:- " 71A. Prohibited practices . (1) No person shall, whether on commission or for or in expectation of any fee, gain or reward, supply or undertake to supply or advertise or hold himself out in any manner that he will supply to any person addresses or other particulars of- (a) houses that are to let; (b) houses, land or estates that are for sale, unless he is the holder of a real estate agent's licence. (2)_ No person shall display photographs of real property for sale on behalf of any other person or supply particulars of that real property (other than in a newspaper or similar publication circulating generally in the State or part of the State) unless- (a) he is the holder of a real estate agent's licence;

1014 Auctioneers and Agents Act Amendment Act 1975, No. 82 (b) he is the licensee with whom the property has been listed; and (c) it is a condition of his acting as agent in respect of the listing that he is only entitled to commission payable under this Act for so acting.". 20. Ame ndment of s. 90. Section 90 of the Principal Act is amended by- (a) in subsection (1), inserting.at the end of subparagraph (a) the following subparagraph:- 44 (aa) to attend before him at a time and place named "; (b) omitting subsection (2) and substituting the following subsection :- " (2) The registrar, an inspector or the person so appointed by the Minister may require- (a) a person who has the possession, custody or control of any book, account, document, writing, record, contract or agreement relating to- (i) a transaction by or with a licensee in connexion with the licensee's business as a licensee; or (ii) a transaction in connexion with the sale of land by or with a person who is not a licensee, to produce at any time and from time to time that book, account, document, writing, record, contract or agreement for his inspection, examination or audit; (b) any person to attend before him at a time and place named; (c) the person specified in subparagraph (a) or (b) to answer questions or supply information with respect to that book, account, document, writing, record, contract or agreement or with . respect to entries therein."; (c) in subsection (6), inserting at the end of subparagraph (a) the following subparagraph: " ; or (aa) when required under this section to attend before the registrar, an inspector or the person so appointed by the Minister fail without lawful excuse to so attend in accordance with such requirement "; (d) in subsection (9), adding at the end thereof the words " and any person who is required pursuant to section 67A (5) to pay money into a trust account ". 21. Amendment of s. 91. Section 91 of the Principal Act is amended by, in subsection (1), (a) omitting the word " and " occurring between subparagraph (a) and subparagraph (b);

Auctioneers and Agents Act Amendment Act 1975, No. 82 1015 (b) inserting at the end of subparagraph (b) the following subparagraph:- 46 • and (c) to inform the Registrar forthwith whenever there are insufficient moneys in a general trust account or a separate trust account of the licensee to meet a cheque drawn on the account, of the amount of the cheque and the amount-in the account ". 22. Amendment of s. 94 . Section 94 of the Principal Act is amended by, in subsection (1), omitting the words " annually in advance " and substituting the words " at the times and in the manner prescribed ". 23. Amendment of s. 95 . Section 95 of the Principal Act is amended by, in subsection (1), inserting after the words " impose on every licensee " the words " who has contributed or is ". 24. Amendment of s. 96 . (1) Section 96 of the Principal Act is amended by- (a) in subsection (1), in the definition " Commencing date " adding at the end thereof the following paragraph:- f. In the case of a licensee who commences business after the commencing date, then that date shall be the first day of January, April, July or October, following the date his licence is granted "; (b) inserting after subsection (2) the following subsections:- " (2A) Where in order to comply with the provisions of paragraph (c) of subsection (2) of this section in respect of any period of three months ending on a quarter day after the first such period a licensee is required to deposit with the registrar a sum additional to the amount standing upon deposit by the licensee with the registrar during the last preceding period of three months ending on a quarter day in compliance with those provisions, the licensee shall be deemed to have complied with those provisions if the additional sum is deposited with the registrar within twenty days after the quarter day of the period of three months ending on a quarter day that is in question. (2B) A licensee is deemed to have complied with the provisions of subsection (2) of this section if the sum deposited and kept deposited with the registrar is not less than the sum in even hundreds of dollars next below the sum that is the minimum sum that he is required to deposit and keep deposited with the registrar in order to comply with those provisions.". (c) in subsection (4), omitting the words " the minimum rate fixed from time to time by the Reserve Bank for short term interest bearing deposits of three months duration " and substituting the words " the prescribed minimum rate (if any) ". (2) Any act or thing done before the commencement of this Act in purported exercise of any power or performance of any function or duty conferred or imposed by section 96 of the Principal Act that would have been lawfully done if this section had come into operation on 1 April 1972 shall be deemed to have been lawfully done and to be valid and effective for all purposes.

1016 Auctioneers and Agents Act Amendment Act 1975, No. 82 25. Amendment of s. 97. Section 97 of the Principal Act is amended by, in subsection (2), omitting the words " the minimum rate fixed from time to time by the Reserve Bank for short term interest bearing deposits of three months' duration " and substituting the words " the prescribed minimum rate (if any)". 26. Amendment of s. 98 . Section 98 of the Principal Act is amended by adding at the end of the section the following subsection:- " (5) For the purposes of this section and sections 99, 100, 102, 103 and 104 " licensee " includes a person who carries on the business of an auctioneer, a real estate agent, a motor dealer or a commercial agent and is not the holder of a licence.". 27. Amendment of s. 106 . Section 106 of the Principal Act is amended by, in subsection (14), omitting the expression " (2) " where it twice occurs and substituting the expression " (3) " in each case. 28. Amendment of s. 131. Section 131 of the Principal Act is amended by in subsection (1)- (a) in subparagraph (iii), omitting the word " Board " and substituting the word " Committee "; (b) in subparagraph (x), omitting the words " to be charged " and substituting the word " payable ". By Authority: S. G. REID, Government Printer , Brisbane