Auctioneers and Agents Act and Another Act Amendment Act 1972 (Qld)

362 Quc`E1t,ln t r ANNO VICESIMO PRIMO ELIZABETHAE SECUNDAE REGINAE No. 36 of 1972 An Act to Amend the Auctioneers and AgentsAct 1971 and The Building Units Titles Act of 1965 , each in certain particulars [ASSENTED TO 21ST DECEMBER, 1972] 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:- PART I-PRELIMINARY 1. Short title and commencement . (1) This Act may be cited as the Auctioneers and Agents Act and Another Act Amendment Act 1972. (2) Save as expressly provided in this Act, this Act shall commence on the day on which it is assented to by or for and on behalf of Her Majesty. (3) Section 34 shall commence on a date to be fixed by Proclamation. 2. Parts of Act. This Act is divided into Parts as follows:- PART I-PRELIMINARY; PART II-AMENDMENTS TO THE AUCTIONEERS AND AGENTS ACT 1971; PART 111-AMENDMENTS TO THE BUILDING UNITS TITLES ACT OF1965.

Auctioneers and AgentsAct, Etc., Amendment Act 1972, No. 36 363 PART II-AMENDMENTS TO THE AUCTIONEERS AND AGENTS ACT 1971 3. Citation . (1) In this Part, the Auctioneers and Agents Act1971 is referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the Auctioneers and Agents Act1971-1972. 4. Amendment of s. 5 . Interpretation . Section 5 of the Principal Act is amended- (a) by in subsection (1) omitting from the definition " Commercial agent " the following phrase:- " undertake any of the functions of- (a) ascertaining the whereabouts of or repossessing any goods or chattels which are the subject of a hire purchase agreement or a bill of sale; or (b) collecting or requesting payment of debts- on behalf of any person or persons for or in consideration of any payment or other remuneration (whether monetary or otherwise): The term does not include a person who--"; and inserting in its stead the following:- undertake any of the functions of- (a) ascertaining the whereabouts of or repossessing any goods or chattels which are the subject of a hire purchase agreement or a bill of sale or a chattel lease agreement; or (b) collecting or requesting payment of debts, on behalf of any other person or persons for or in consideration of any payment or other remuneration (whether monetary or otherwise): The term does not include a person who-"; (b) by inserting in subsection (1), after the definition " Employee ", the following definition:- " " Financier " means a corporation whose ordinary business (whether or not it carries on any other business) is that of providing credit and which does not carry on the business of buying, selling or exchanging motor vehicles except only for one or more of the following purposes- (a) for the purpose of selling motor vehicles on instalment terms; (b) for the purpose of hiring motor vehicles under hire purchase agreements; (c) for the purpose of effectuating or enforcing securities over motor vehicles; (d) for the purpose of the hiring where the right to purchase the motor vehicle is not included in that hiring of motor vehicles; or (e) for the purpose of disposing of motor vehicles acquired by it in connexion with any of the purposes referred to in paragraphs (a), (b), (c) and (d). For the purposes of this definition the term- provridinngg credit " means- (a) the making of loans;

364 Auctioneers and AgentsAct, Etc., Amendment Act 1972, No. 36 (b) the hiring under hire purchase agreements of motor vehicles bought or taken in exchange from or with- (i) licensed motor dealers; (ii) financiers; (iii) persons not being licensed dealers or financiers in circumstances which do not constitute the person so buying or taking motor vehicles in exchange a dealer; (c) the giving of guarantees, indemnities or bonds; (d) the endorsing or accepting of bills of exchange; (e) the hiring where the right to purchase the motor vehicle is not included in that hiring or the sale on instalment terms."; (c) by inserting in subsection (1) in the definition " Motor Dealer ", after the words "Any person ", the phrase ", other than a financier,"; and (d) by inserting in subsection (3), after the words " shall not apply ", the words " to or in relation to the Public Curator or ". 5. Amendment of s. 12. Powers of Committee as to professional misconduct of licensees . Section 12 of the Principal Act is amended by omitting subsections (5) and (6). 6. New s. 13A. The following section is inserted after section 13 of the Principal Act:- 13A. Appeals from Committee . (1) Any- (a) licensee who feels aggrieved by any decision of the Committee under section 12; (b) person whose application for a licence or renewal of a licence is refused by the Committee under section 18; (c) licensee , employee, director, or secretary who feels aggrieved by any decision of the Committee under section 22; (d) former licensee who feels aggrieved by any decision of the Committee under section 24; (e) person whose application for registration or renewal of registration is refused by the Committee under section 28; (f) holder of a certificate of registration who feels aggrieved by any decision of the Committee under section 31, may, within one month after notification to him of the Committee's decision, appeal to a Magistrates Court having jurisdiction at the place- (g) where the applicant carried on business, or proposes to carry on business; or (h) in the case where the applicant is, or proposes to be, an employee of a licensee- (i) where that licensee carries on business or proposes to carry on business; or (ii) in the case where that licensee is the holder of a corporation licence where the registered office of the corporation is situated.

Auctioneers and Agents Act, Etc., Amendment Act 1972, No. 36 365 (2) Every appeal under subsection (1) shall be by way of rehearing and shall not be limited to the material before the Committee when the Committee considered the matter in question. (3) The Magistrates Court shall inquire into and determine the appeal and subject to this section its decision shall be final. (4) Any person who feels aggrieved by any decision of a Magistrates Court under this section may, within one month after the decision has been given, appeal therefrom to a District Court. (5) Every appeal under subsection (4) shall be by way of rehearing and the District Court shall inquire into and determine the appeal and subject to this section its decision shall be final. (6) Any person who feels aggrieved by any decision of a District Court under this section may, within one month after the decision has been given, appeal to the Supreme Court on the ground of error or mistake in law but not otherwise. (7) An appeal under this section shall be instituted by filing in the registry or other appropriate office of the court in question a notice of appeal. (8) In relation to a court to which an appeal may be made under this section the power to make rules of Court includes power to make rules providing and regulating practice and procedure in respect of appeals to the court in question and until such rules are made a Judge of the Court or Stipendiary Magistrate as the case may be may, in any particular case, give such directions as he deems fit and such directions shall, according to their tenor, have the force and effect of rules made under this subsection for the purpose of this section.". 7. Amendment of s. 14 . No person to act without a licence. Section 14 of the Principal Act is amended- (a) by inserting in subsection (1) at the end thereof the sentence " In the case of a corporation, or a partnership no person shall act as auctioneer on its behalf .unless he is the holder of an auctioneer's licence."; (b) by adding at the end of subsection (4) the words " and, except where the sole business of the corporation is the business of an auctioneer every working director, or where there is no working director at least one director, of the corporation resident in this State is the holder of a licence or licences of such one or more of the classes referred to in section 16 as may be appropriate "; (c) by omitting from subsection (5) the words " every director " and inserting in their stead the words " every working director, or where there is no working director at least one director,"; (d) by inserting after subsection (5) the following subsection:- " (5A) For the purposes of subsections (4) and (5), the term " working director " means a director who is required to devote substantially the whole of his time to the service of the corporation- (a) in a managerial capacity substantially related to the business of an auctioneer, real estate agent , commercial agent or motor dealer or, where any such business is carried on in conjunction with any other such business, the business so carried on; or

366 Auctioneers and AgentsAct, Etc., Amendment Act 1972, No. 36 (b) in all or any of the capacities of an auctioneer, real estate agent , commercial agent or motor dealer. ". 8. Amendment of s. 15 . Each separate place of business to be in charge of licensed manager . Section 15 of the Principal Act is amended by omitting from paragraph (a) of subsection (5) the phrase " (in the case of a manager's (real estate agency) licence, within forty miles of the boundary of Queensland) " and inserting in its stead the words " within sixty-five kilometres of the boundary of Queensland ". 9. Amendment of s. 16 . Classes of licences . Section 16 of the Principal Act is amended by omitting paragraphs (a) and (b) of subsection (5) and inserting in their stead the following paragraphs:- " (a) Unless sooner cancelled, surrendered or renewed, a licence shall be in force for the period of twelve months from and including the date of issue or renewal, as the case may be. (b) Where an application is made for renewal of a licence before the commencement of the period not later than which the application shall be made under subsection (4) of section 17 and the licence expires before the Committee grants, or refuses to grant, the renewal of the licence, the licence shall be deemed to continue in force in all respects until the Committee grants, or refuses to grant, the renewal thereof.". 10. Amendment of s. 17. Application for licence . Section 17 of the Principal Act is amended- (a) by omitting from subsection (4) the words " the thirtieth day of November of the year in which the licence will expire, if not renewed." and inserting in their stead the words " one calendar month before the anniversary in the year in which the licence will expire if not renewed of the day upon which the licence was granted or, where a renewal of the licence had been granted, of the day of the last renewal thereof."; (b) by omitting from subsection (5) the words " after the thirtieth day of November in any year " and inserting in their stead the words " after the commencement of the period not later than which application therefor shall be made under subsection (4) "; (c) by omitting from subsection (6) the words " until the thirty-first day of December " and inserting in their stead the words " until the expiration of a period of twelve months ". 11. Amendment of s. 18 . Grant of licence . Section 18 of the Principal Act is amended- (a) by inserting after subsection (2), the following subsections:- " (2A) The date of issue of a renewal of a licence shall, subject to subsection (2B), be the anniversary in the year in which the renewal is granted of the date of issue of the licence or, where a renewal of the licence has been previously granted, the date of issue of the last preceding renewal. (2B) Where a licence (being a licence granted before the commencement of the Auctioneers and Agents Act and Another Act Amendment Act 1972) is first renewed by the Committee after that commencement the date of issue of that first renewal shall be the date upon which the Committee grants that renewal."; and.

Auctioneers and Agents Act, Etc., Amendment Act 1972, No. 36 367 (b) by omitting subsections (7) and (8) and inserting in their stead the following subsections:- " (7) In granting any licence or renewal of a licence the Committee- (a) may grant the licence, or renewal, without terms and conditions; or (b) may grant the licence, or renewal, upon and subject to such terms and conditions as it deems fit. (8) Where a licence is granted or renewed subject to terms and conditions any renewal, or further renewal, thereof shall, unless the Committee directs otherwise, be deemed to be granted under and subject to those terms and conditions. (9) Terms and conditions imposable by the Committee under this section may be imposed by it at its discretion and differently in respect of different licences or licensees. (10) The Committee may at any time amend, alter, vary or revoke the terms and conditions of a licence or any of them. 12. Amendment of s. 21 . Fees for licences . Section 21 of the Principal Act is amended by in subsection (2) inserting after the word " shall " the words " be paid at the time and in the manner prescribed and where such are not prescribed shall ". 13. Amendment of s. 22 . Cancellation of licence by Committee. Section 22 of the Principal Act is amended by omitting subsections (10) and (11). 14. Amendment of s. 24 . Disqualification of former licensees, etc. Section 24 of the Principal Act is amended by omitting subsections (9) and (10). 15. Amendment of s. 26. Certain employees to be registered . Section 26 of the Principal Act is amended by omitting paragraphs (a) and (b) from subsection (8) and inserting in their stead the following paragraphs:- " (a) Unless sooner cancelled, surrendered or renewed, a certificate of registration shall be in force for the period of twelve months from and including the date of issue or renewal, as the case may be. (b) Where an application is made for renewal of a certificate of registration before the commencement of the period not later than which the application shall be made under subsection (4) of section 27 and the certificate of registration expires before the Committee grants, or refuses to grant, the renewal of the certificate of registration, the certificate of registration shall be deemed to continue in force in all respects until the Committee grants, or refuses to grant, the renewal thereof.". 16. Amendment of s. 27. Application for registration . Section 27 of the Principal Act is amended by omitting from subsection (4) the words " thirtieth day of November of the year in which the registration will expire, if not renewed " and inserting in their stead the words " one calendar month before the anniversary in the year in which the registration will expire if not renewed of the day upon which the registration was granted or, where a renewal of the registration has been granted, of the Say of the last renewal thereof ".

368 Auctioneersand Agents Act, Etc., Amendment Act 1972, No. 36 17. Amendment of s. 28 . Grant of registration . Section 28 of the Principal Act is amended- (a) by adding to paragraph (a) of subsection (6) at the end thereof the words " or within sixty-five kilometres of the boundary of Queensland "; and (b) by omitting subsections (7) and (8). 18. Repeal of s. 29 . Alteration of employment . Section 29 of the Principal Act is repealed. 19. Amendment of s. 30 . Fees. Section 30 of the Principal Act is amended by in subsection (2) inserting after the word " shall " the words " be paid at the time and in the manner prescribed and where such are not prescribed shall ". 20. Amendment of s. 31 . Cancellation of registration by Committee. Section 31 of the Principal Act is amended- (a) by omitting from subsection (1) the word " dealer " and inserting in its stead the word " salesman "; and (b) by omitting subsections (9) and (10). 21. Amendment of s. 34. General auctioneers ' licences. Section 34 of the Principal Act is amended- (a) by inserting in paragraph (a) of subsection (1) at the end thereof the words " or within sixty-five kilometres of the boundary of Queensland "; and (b) by omitting subsection (2). 22. Amendment of s. 35. Provisional auctioneers ' licences. Section 35 of the Principal Act is amended by inserting in paragraph (a) of subsection (6) at the end thereof the words " or within sixty-five kilometres of the boundary of Queensland ". 23. Amendment of s. 36 . Restricted auctioneers ' licences. Section 36 of the Principal Act is amended by inserting in paragraph (a) of subsection (4) at the end thereof the words " or within sixty-five kilometres of the boundary of Queensland ". 24. Repeal of s. 37. Night auctions . Section 37 of the Principal Act is repealed. 25. Amendment of s. 42 . Real estate agents' licences. Section 42 of the Principal Act is amended- (a) by omitting from subsection (1) the words " forty miles " and inserting in their stead the words " sixty-five kilometres "; and (b) by omitting subsections (2) and (3).

Auctioneers and Agents Act, Etc., Amendment Act 1972, No. 36 369 26. New s. 42A. The following section is inserted after section 42 of the Principal Act:- " 42A. Reciprocity in grant of licences. (1) The Committee may, in its discretion, grant or refuse to grant a real estate agent's licence to any person who- (a) has passed a prescribed course for the obtaining of such licence in any other State or any Territory of the Commonwealth and holds and has held such a licence in that State or Territory for the period of three years immediately preceding the application to the Committee for such a licence in this State; (b) not having passed a prescribed course for the obtaining of such a licence, holds and has field in that State or Territory such a licence for the period of seven years immediately preceding the application to the Committee for such a licence in this State. (2) The Committee shall before granting a licence under this section satisfy itself that the applicant has sufficient knowledge of the provisions of this Act relating to real estate agents. (3) The Committee shall be empowered by the applicant to obtain from the appropriate authority in the State or Territory where he currently holds or has previously held a licence, a confidential report on the applicant and a certificate of his fitness to hold such a licence.". 27. Amendment of s. 43. Sole agencies and multiple listings. Section 43 of the Principal Act is amended by adding at the end thereof the following subsection:- " (3) Any appointment or engagement in writing to which this section relates shall be in a form, if any, approved by the Committee. Different such approvals may be made in respect of different such appointments or engagements.". 28. Amendment of s. 46. Commercial agents' licences. Section 46 of the Principal Act is amended- (a) by inserting in paragraph (a) of subsection (1) at the end thereof the words " or within sixty-five kilometres of the boundary of Queensland "; and (b) by omitting subsections (2) and (3). 29. Repeal of s. 51 . Repossession of motor vehicles to be reported. Section 51 of the Principal Act is repealed. 30. Amendment of s. 54 . Motor dealers' licences. Section 54 of the Principal Act is amended- (a) by inserting in paragraph (a) of subsection (1) at the end thereof the words " or within sixty-five kilometres of the boundary of Queensland "; and (b) by omitting subsections (2) and (3). 31. Amendment of s. 57. Information to be given to purchasers. Section 57 of the Principal Act is amended by omitting all words after the words " writing setting out " and inserting in their stead the words " such information as may be prescribed and guaranteeing clear title to the motor vehicle to the purchaser "..

370 Auctioneers and AgentsAct, Etc., Amendment Act 1972, No. 36 32. Repeal of s. 58 . Roadworthiness of used motor vehicles. Section 58 of the Principal Act is repealed. 33. Amendment of s. 64 . Beneficial interest . Section 64 of the Principal Act is amended by omitting the phrase " sections 61 and 62" and inserting in its stead the phrase " sections 62 and 63 ". 34. Repeal of s. 67 and new ss. 67 and 67A. Section 67 of the Principal Act is repealed ar<d the following sections are.inserted in its stead:- " 67. Obligations and rights as to assurance of title ' to land. (1) Where an auctioneer by auction, or a real estate agent as such, sells any land that- (a) if freehold land under The Real Property Acts 1861 to 1963 is not the whole of the land contained in an existing Deed of Grant or Certificate of Title; or (b) 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, then, notwithstanding any other provision of this Act, that auctioneer or real estate agent shall retain in the trust account into which he has paid the same pursuant to this Act all moneys received by that auctioneer or real estate agent in respect of that transaction until- (c) in the case of freehold land under The Real Property Acts 1861 to 1963 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 under those Acts to be so lodged and registered precedent to the taking out of a separate Certificate of Title under those Acts containing only the land to which the sale relates; or (d) in the case of land held from the Crown for an estate of leasehold, the holder of that leasehold estate therein as at the time of the sale is legally competent to assure to the purchaser title to that leasehold estate, unless the person who paid that money shall be sooner entitled as provided under this section to a refund thereof in which event the auctioneer or real estate agent shall make the refund from the trust account in compliance in every respect with the requirements of this Act in relation to payment by him of moneys from a trust account. (2) Any person who, in respect of a sale of any land, being land to which paragraph (a) or (b) of subsection (1) refers, receives, other than in the capacity of auctioneer or real estate agent, any money shall- (a) forthwith pay that money into an office or branch in Queensland of a bank carrying on business under the authority of an Act of this State or of the Commonwealth to the credit of a general trust account or a separate trust account; and

Auctioneers and AgentsAct, Etc., Amendment Act 1972, No. 36 371 (b) not withdraw it or any amount of it from that trust account until the provisions of paragraph (c) or, as the case requires, paragraph (d) of subsection (1) shall have been complied with in every respect in respect of the land in question unless the person who paid that money shall be sooner entitled as provided under this section to a refund thereof, in which event that refund may be made from that trust account. (3) If in respect of- (a) any freehold land under The Real Property Acts 1861 to 1963 (being land to which paragraph (a) of subsection (1) refers) 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 under those Acts to be lodged in the office of the Registrar of Titles and registered by the Registrar of Titles precedent to the taking out of a separate Certificate of Title under those Acts containing that land only have not been so lodged and registered before a purchaser becomes liable to pay in full the purchase price payable therefor or, in any case to which section 9 of The Contracts of Sale of Land Act of 1933 would apply upon payment of an amount of the purchase price equal to thirty-three and one-third per centum thereof, such amount; or (b) any land held from the Crown for an estate of leasehold, (being land to which paragraph (b) of subsection (1) refers) the holder from the Crown of that leasehold estate is not legally competent to assure to the purchaser title to that leasehold estate when that purchaser becomes liable to pay in full the purchase price payable therefor, then at any time before the said plans, instruments and other documents have been registered by the Registrar of Titles or, in the case of any such leasehold estate, the holder thereof has become legally competent to assure to the purchaser title to that leasehold estate and whether or not payment as aforesaid has been made or tendered, the purchaser may at his option void the contract in respect of the sale and purchase of that land entered into by him by notice in writing given to the seller or, where the sale was effected by an auctioneer or real estate agent, to that seller or that auctioneer or real estate agent. (4) Upon the voidance, pursuant to the provisions of subsection (3), by a purchaser under a contract in respect of the sale and purchase of any land, any auctioneer, real estate agent, or other person whosoever who, in respect of that transaction, shall have received" any moneys paid by or on behalf of the purchaser, shall forthwith refund the same to t'^e person by or on whose behalf those moneys were paid, or as he may direct in writing, and all such moneys shall be recoverable, by action as for a debt, by the person by whom or on whose behalf the same were paid. (5) Any auctioneer, real estate agent, or other person whosoever who contravenes or fails to comply with any provision of 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

372 Auctioneers and Agents Act, Etc., Amendment Act 1972, No. 36 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. (6) Liability to punishment under subsection (5) shall be additional to other liabilities at law imposed by this section, and the fact that an auctioneer, real estate agent, or other person whosoever has not been prosecuted or, if prosecuted, has or has not been convicted of an offence under this section shall not bar or prejudice howsoever any proceedings for enforcing against him any other such liability. (7) 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, being land to which this section applies, whereby it is agreed that the provisions of this section shall, in any respect, not apply in respect of that transaction, shall be void and of no legal effect whatsoever. (8) 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. 67A. Obligations and rights as to assurance of title to building unit. (1) Where an auctioneer by auction or real estate agent as such- (a) sells any unit into which any freehold land is, or is proposed to be, subdivided in strata or storeys whether or not the unit is or is proposed to be the whole or part of a strata or storey that is comprised or is to be comprised in a building that is in the course of construction (the construction thereof having commenced after the coming into operation of this section), or the construction of which is proposed, on the land in question; and (b) any representation, promise or term is made or offered to the purchaser with respect to the availability or provision to the purchaser of a separate Certificate of Title under The Real Property Acts 1861 to 1963 for the unit together with the share of the common property appurtenant thereto, whether the representation, promise or term is a term of the transaction or not, then, notwithstanding any other provision of this Act, that auctioneer or real estate agent shall retain in the trust account into which he has paid the same pursuant to this Act all moneys received by the auctioneer or real estate agent in respect of that transaction until a building units plan in which the unit, the subject of the transaction, is incorporated as a unit is registered by the Registrar of Titles in accordance with the Building Units Titles Act 1965-1972 unless the person who has paid that money shall be sooner entitled under this section to a refund thereof in which event the auctioneer or real estate agent shall make the refund from the trust account in compliance in every respect with the requirements of this Act in relation to payment by him of moneys from a trust account.

Auctioneers and Agents Act, Etc., Amendment Act 1972, No. 36 373 (2) An auctioneer who sells by auction, or a real estate agent who as such or as a principal sells, any unit to which paragraph (a) of subsection (1) refers shall give to the purchaser of the unit a statement in writing in compliance in every respect with the requirements of subsection (3) of this section. (3) A statement in writing given under subsection (2) shall- (a) clearly identify the unit to which the statement relates; (b) state the names and addresses respectively of the seller and the purchaser; (c) state clearly whether or not the auctioneer or real estate agent has (by himself or by any of his employees) made or offered to the purchaser any representation, , promise or term with respect to the provisions to the purchaser in relation to the unit of a separate Certificate of Title under The Real Property Acts 1861 to 1963; (d) if any such representation, promise or term has been made or offered, in addition to clearly stating that fact, state clearly the particulars of that representation, promise or term; (e) state the date on which the statement is given; and (f) be signed by the auctioneer or real estate agent or by a person thereunto authorized in writing (prior notice whereof accompanied by a copy of the authority has been delivered to the Registrar) by the auctioneer or real estate agent, and shall not contain any other written, typewritten or printed matter whatsoever except the letter head, if any, of the auctioneer or real estate agent. (4) A statement in writing under this section shall be given by the auctioneer or real estate agent to the purchaser before the purchaser signs any contract, agreement or document whatsoever legally binding or intended to bind the purchaser legally in respect of the sale of the unit. (5) Any person who in respect of a sale of any unit, being a unit to which paragraph (a) of subsection (1) refers and being a sale in respect of which any representation, promise or term to which paragraph (b) of that subsection refers has been made or offered to the purchaser, receives, other than in the capacity of auctioneer or real estate agent, any money, shall- (a) forthwith pay that money into an office or branch in Queensland of a bank carrying on business under the authority of an Act of this State or of the Commonwealth to the credit of a general trust account or a separate trust account; and (b) not withdraw it or any amount of it from that trust account until a building units plan in which the unit the subject of the transaction is incorporated as a unit is registered under the Building Units Titles Act 1965-1972 unless the person who paid that money shall be sooner entitled under this section to a refund thereof in which event that refund may be made from that trust account. (6) If in respect of any unit, being a unit to which at the time the contract for the sale and purchase thereof was entered into paragraph (a) of subsection (1) referred and in respect of the sale of which any representation, promise or term to which paragraph (b) of that subsection

374 Auctioneers and Agents Act, Etc., Amendment Act 1972, No. 36 refers has been made or offered to the purchaser, a building units plan in which the unit is incorporated as a unit has not been registered under the Building Units Titles Act 1965-1972 before the purchaser under the transaction shall have become liable to pay in full the purchase price payable therefor then at any time before such a building units plan has been registered under the said Act and whether or not payment as aforesaid has been made or tendered the purchaser under the transaction may at his option avoid the contract in respect of the sale and purchase of that unit entered into by him by notice in writing given to the seller, or where the sale was effected by an auctioneer or real estate agent to that seller or that auctioneer or real estate agent. (7) Upon the voidance, pursuant to the provisions of subsection (6), by a purchaser under a contract in respect of the sale and purchase of any unit, any auctioneer, real estate agent or other person whosoever who in respect of that transaction shall have received any moneys paid by or on behalf of the purchaser shall forthwith refund the same to the person by or on whose behalf those moneys were paid, or as he may direct in writing, and all such moneys shall be recoverable, by action as for a debt by the person by whom or on whose behalf the same were paid. (8) Any auctioneer, real estate agent or other person whosoever who contravenes or fails to comply with any provision of 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. (9) Liability to punishment under subsection (8) shall be additional to other liabilities at law imposed by this section and the fact that an auctioneer, real estate agent or other person whosoever has not been prosecuted or, if prosecuted, has or has not been convicted of an offence under this section shall not bar or prejudice howsoever any proceedings for enforcing against him any other such liability. (10) 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 unit, being a unit to which paragraph (a) of subsection (1) refers and in respect of the sale of which any representation, promise or term to which paragraph (b) of that subsection refers has been made or offered to the purchaser, whereby it is agreed that the provisions of this section shall, in any respect, not apply in respect of that transaction, shall be void and of no legal effect whatsoever. (11) 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 a unit, or any other transaction whatsoever granting or purporting to grant to any person a right not immediately exec. ''^ to purchase or to be given an option for the purchase of a unit whether existing or proposed and the term " purchase " has a corresponding meaning.". 35. Amendment of s. 69. When the Minister may cancel licences. Section 69 of the Principal Act is amended- (a) by inserting after paragraph (b) of subsection (1) the following word and paragraphs:- 69 • or

Auctioneers and Agents Act, Etc., Amendment Act 1972, No. 36 375 (ba) that, in respect of a sale of a unit (being a transaction to which section 67A applies) effected by that auctioneer or by that real estate agent whether as such or as a principal, neither he nor any of his employees has made or offered to the purchaser any representation, promise or term as respects the availability or provision to the purchaser of a separate Certificate of Title under The Real Property Acts 1861 to 1963 for the unit together with the share of the common property appurtenant thereto which has not been fulfilled according in every respect as so made or offered or alternatively, where the making or offering of such a representation, promise or term that has not been fulfilled is admitted that the same was made or offered bona fide and the fulfilment thereof in every respect as made or offered was prevented by circumstances arising after it was made or offered being circumstances of which the auctioneer or real estate agent neither had knowledge nor could by the exercise of due diligence have acquired knowledge before affecting the sale in question; or (bb) that, in respect of a sale of a unit (being a transaction to which section 67A applies) effected by that auctioneer by auction or by that real estate agent whether as such or as a principal, prior to the entering by the purchaser into any transaction or agreement in respect of the sale, he informed the purchaser of the provisions of section 67A, and in particular of the rights of the purchaser under that section, and further that such auctioneer or real estate agent has complied in every respect with the provisions binding upon him of that section; " and (b) by in paragraph (c) of subsection (1) omitting the figures " 67 " and inserting in their stead the figures " 68 ". 36. Amendment of s. 74. Appointment of substitute licensee. Section 74 of the Principal Act is amended by inserting in paragraph (c) of subsection (1), after the words " becomes bankrupt ", the words " or becomes mentally sick ". 37. Amendment of s. 81 . Publication of name of licensee. Section 81 of the Principal Act is amended- (a) by omitting from subsection (1) the phrase ", his description as a licensee , and the number of his licence " and inserting in its stead the phrase " and his description as a licensee "; (b) by omitting from subsection (1) the words " or figures "; and (c) by omitting from subsection (5) the phrase ", the address of his registered office, and the number of his licence " (wherever occurring) and inserting in its stead the phrase " and the address of his registered office ". 38. Amendment of s. 83. Application of trust moneys. Section 3 of the Principal Act is amended by inserting in subsection (5), at the end thereof, the following word and paragraph:- " ; or

376 Auctioneers and AgentsAct, Etc., Amendment Act 1972, No. 36 (c) where no notice or advice is received by him pursuant to paragraph (a) or (b) within a period of sixty days after the receipt of the notice firstmentioned in this subsection, the said period expires ". 39. Amendment of s. 86 . Trust accounts of employers . Section 86 of the Principal Act is amended by inserting, after the words " an employee of another person ", the phrase " (being a person who is a licensee)". 40. Amendment of s. 89. Audit of trust accounts . Section 89 of the Principal Act is amended- (a) by omitting from subsection (1) the words " the thirtieth day of September in each and every year, or within such abridged or extended time after the thirtieth day of September in any year as the Minister " and inserting in their stead the words "the last day of the month (hereinafter in this section referred to as the " said month ") that is the eighth month after the month in which, where his licence was granted before the commencement of the Auctioneers and Agents Act and Another Act Amendment Act 1972, the licence is first renewed under this Act and, in any other case, in which his licence was granted under this Act and thereafter within two months after the last day of the said month in each and every succeeding year, or within such abridged or extended time after the said last day as the Registrar "; (b) by omitting from paragraph (a) of subsection (1) the words " said thirtieth day of September " and inserting in their stead the words " the said last day of the said month "; (c) by omitting from paragraph (c) of subsection (1) the words " that thirtieth day of September " and inserting in their stead the words " that last day of the said month "; and (d) by adding at the end of subsection (1) the following paragraph:- " A reference in this subsection to a " period of twelve months " includes a reference to any period in excess of twelve months that has elapsed since the trust account or trust accounts in question were last audited under this Act as in force immediately before the commencement of the Auctioneers and Agents Act and Another Act Amendment Act 1972 during which the licensee continued to be a licensee.". 41. Amendment of s. 90. Inspection , audit , etc., by registrar or inspector . Section 90 of the Principal Act is amended by adding to subsection (9), at the end thereof, the words " and any person (not being the holder of an appropriate licence) who acts as, or in relation to whom a Justice of the Peace is satisfied that the registrar has reasonable grounds for believing that the person acts as, an auctioneer, a real estate agent, a commercial agent or a motor dealer ". 42. Amendment of s. 91 . Duties of bank managers . Section 91 of the Principal Act is amended by adding at the end thereof the following subsection:- " (3) For the purposes of this section the bank shall be deemed to be the agent of the licensee and such books, accounts, documents and writings shall be deemed to be the books, accounts, documents and writings of the licensee.".

Auctioneers and Agents Act, Etc., Amendment Act 1972, No. 36 377 43. Amendment of s. 94. Contributions to the Fund . Section 94 of the Principal Act is amended by omitting from subsection (1) all words occurring after the word " licensee ". 44. Amendment of s. 96. Licensee ' s trust accounts , etc. Section 96 of the Principal Act is amended- (a) by omitting from the definition " Trust Account " in subsection (1) the figures " 82 " and inserting in their stead the figures " 83 "; (b) by omitting subsections (4) and (5) and inserting in their stead the following subsection:- " (4) Pending repayment under subsection (3), moneys deposited by a licensee with the registrar pursuant to this section shall be invested by the registrar either upon deposit with any bank carrying on business in Queensland under an Act of this State or of the Commonwealth or upon loan to the Treasurer of Queensland, in either case, at such rate as may be negotiated by the Committee but not less than the minimum rate fixed from time to time by the Reserve Bank for short term interest bearing deposits of three months duration and any moneys so loaned to the Treasurer shall be repayable upon demand."; (c) by omitting subsection (6) and inserting in its stead the following subsection:- " (6) The amounts of interest accruing at any time and from time to time in respect of moneys invested pursuant to subsection (4) shall be paid to the credit of the Fund."; and (d) by omitting from subsection (7) the word " half ". 45. Amendment of s. 97. Interest on moneys in the Fund . Section 97 of the Principal Act is amended- (a) by renumbering that section as subsection (1); (b) by omitting from that subsection (1) all words after the word " Fund " where secondly occurring; and (c) by adding, at the end thereof, the following subsection:- " (2) Interest on the moneys in the Fund shall be calculated on the minimum daily balance at a rate fixed by the Treasurer but not less than the minimum rate fixed from time to time by the Reserve Bank for short term interest bearing deposits of three months' duration." 46. Amendment of s. 98 . Application of Fund . Section 98 of the Principal Act is amended- (a) by inserting in subsection (1), after the words " by reason of ", the words " the contravention or failure to comply with any provision of sections 62, 63, 65, 66, 67, 67A or 68 or Division 1 of Part VI or "; (b) by inserting in subsection (3), after the words " in respect of any ", the words " contravention or failure to comply referred to in subsection (1) or any "; and (c) by inserting in subsection (4), immediately before the word stealing " (wherever occurring), the words " contravention or failure to comply or ".

378 Auctioneers and Agents Act, Etc., Amendment Act 1972, No. 36 47. Amendment of s. 99. Claims against the Fund. Section 99 of the Principal Act is amended- (a) by inserting in subsection (1), after the words " at any time after the ", the words " contravention or failure to comply or "; (b) by inserting in subsection (4), after the words " suffer loss through ", the words " any contravention or failure to comply or "; and (c) by inserting in subsection (4), after the words " in relation to the ", the words " contravention or failure to comply as specified in subsection (1) of section 98 or ". 48. Amendment of s. 100. Advertisement relating to defaulting licensee and claims . Section 100 of the Principal Act is amended by omitting from subsection (I) the words " is or ". 49. Amendment of s. 101 . Distribution from Fund . Section 101 of the Principal Act is amended- (a) by renumbering that section as subsection (1); and (b) by inserting, at the end thereof, the following subsection:- " (2) No payment from the Fund by the Committee under this Division made in good faith in the exercise or purported exercise of its powers shall subject the Committee or any member thereof to any liability whatsoever in respect thereof and the proof of any allegation of the absence of good faith on the part of the Committee or any member thereof shall be upon the person so alleging.". 50. Amendment of s. 106. Freezing of trust accounts and ultimate d;sposal of trust moneys of defaulting licensees . Section 106 of the Principal Act is amended- (a) by inserting after subsection (1) the following subsections:- " (2) A notice served under subsection (1) shall be signed by the registrar and dated and shall state that the registrar requires the trust account or trust accounts specified therein to be operated under his control and a copy of the notice shall be served on any person (other than the licensee concerned) authorized to operate on the trust account or trust accounts specified in the notice. (3) After a notice served under subsection (1) has been served on the manager or other principal officer of the office or branch of a bank (as the case may be) and until such notice ceases to be effective, whether or not a copy of such notice has been served on the licensee concerned or on any other person, no payment shall be made by the bank on any cheque or other instrument drawn on any trust account specified in the notice unless it bears (as well as the signature of the licensee or other person authorized to operate on that trust account) the signature of the registrar or of a person thereunto authorized by him (it being hereby declared that the registrar may in writing so authorize any of his officers or agents). (4) If that licensee or other person authorized to operate on a trust account specified in the notice served under subsection (1) is unwilling to operate thereon in conjunction with the registrar or person thereunto authorized by the registrar, the registrar or, with his consent in writing, that authorized person may thereupon operate on any such trust account alone.

Auctioneersand AgentsAct, Etc., Amendment Act 1972, No. 36 379 (5) A statutory declaration made by the registrar or person authorized by him under subsection (3) and subscribed under The Oaths Acts 1867 to 1960 to the, effect that the licensee or other person authorized to operate on any trust account is unwilling to operate thereon in conjunction with the registrar or the person authorized by the registrar shall be sufficient evidence to the licensee's bankers of that fact. (6) After the notice served under subsection (1) has been served on the licensee concerned and until such notice ceases to be effective, that licensee shall not sign any cheque or other instrument drawn on any trust account specified in the notice unless the cheque or other instrument has first been signed by the registrar or a person thereunto authorized by the registrar. (7) After a notice served under subsection (1) has been served on any person (other than the licensee concerned) who is authorized to operate on any trust account specified in the notice and until the notice ceases to be effective, that person shall not sign any cheque or other instrument drawn on any trust account specified in the notice unless the cheque or other instrument has first been signed by the registrar or a person thereunto authorized by the registrar. (8) Any licensee, or manager or principal officer or other officer of any bank, or any person authorized to operate on the trust account of a licensee (including any licensee who is authorized to operate on the trust account of another licensee) who knowingly contravenes or fails to comply with the provisions of this section shall be guilty of an offence against this Act and liable to a penalty not exceeding five hundred dollars. (9) Any licensee in respect of whose trust account a notice is served under subsection (1) may appeal to a District Court Judge who may make such order in the matter as he thinks fit. (10) A notice served under subsection (1) shall cease to be effective- (a) if the registrar rescinds the notice, on the date when it is so rescinded (and it is hereby declared that any such notice may be rescinded by the registrar); or (b) if a District Court Judge on appeal orders that the notice ceases to be effective, on the date specified by the District Court Judge as the date on which the notice shall cease to be effective, or, if no date is specified, on the date of the order. (11) In every case in which any notice ceases to be effective, the registrar shall, as soon as practicable, serve on all persons who have been served therewith a further written notice that such notice has ceased to be effective. (12) Any notice or further such notice required by this section to be served upon any person, may be served- (a) by delivering it to such person; or (b) by sending it by prepaid registered post to such person at his usual place of abode or business or at his place of abode or business last known to the registrar.

380 Auctioneers and AgentsAct, Etc., Amendment Act 1972, No. 36 (13) No bank, and no manager or principal officer of a bank shall incur any civil liability whatsoever to any person for dishonouring or refusing or failing to make payment of a cheque or other instrument which is drawn on a trust account in respect of which the registrar has served a notice under subsection (1) and is not signed by the registrar or a person thereunto authorized by the registrar, if such dishonour or refusal or failure to make payment occurs before the manager or other principal officer who was served with the notice is served by the registrar with a further written notice that such notice has ceased to be effective. (14) No act, matter or thing done or undertaken or omitted to be done or undertaken by the registrar or person authorized by him in good faith in the exercise, or purported exercise, of his powers under this section shall subject the registrar or person authorized by him under subsection (2) to operate on a trust account to any liability whatsoever in respect thereof and the proof of any allegation of the absence of good faith on the part of the registrar or person authorized by him under subsection (2) to operate on a trust account shall be upon the person so alleging."; and (b) by renumbering subsection (2) as subsection (15). 51. Amendment of s. 131 . Regulations . Section 131 of the Principal Act is amended by adding to paragraph (x) of subsection (1) the words ", the period in respect of which any such fee is payable and the time for and manner of payment thereof ". PART 111-AMENDMENTS TO THE BUILDING UNITS TITLES ACT OF 1965 52. Citation . (1) In this Part, The Building Units Titles Act of 1965 is referred to as the Principal Act. (2) The Principal Act as amended by this Act may be cited as the Building Units Titles Act 1965-1972. 53. Amendment of s. 4 . Building Units Plan. Section 4 of the Principal Act is amended- (a) by omitting the word " and " where occurring in subsection (6) after subparagraph (a); (b) by inserting after subparagraph (b) of subsection (6) the following word and subparagraph:- ; and (c) where the construction of the building shown on the buildingunits plan was commenced after the commencement of section 34 ofthe Auctioneers and Agents Act and Another Act Amendment Act 1972, of an architect within the meaning of the Architects Act 1962-1971 that the building has been substantially completed in accordance with plans and specifications approved by the Local Authority or a designated officer of the Local Authority or, where the building has not been constructed under the supervision of an architect, of a building inspector of the Local Authority (which certificate a building inspector is hereby authorized to give unless otherwise directed by the Local Authority) that the building has been substantially completed in accordance with plans and specifications approved by the Local Authority or a designated officer of the Local Authority "; and

Auctioneersand Agents Act, Etc., Amendment Act 1972, No. 36 381 (c) by adding at the end thereof the following subsections:- " (8) No certificate given by a building inspector in good faith for the purposes of paragraph (c) of subsection (6) of this section shall subject the building inspector to any liability whatsoever in respect thereof and the proof of any allegation of the absence of good faith on the part of the building inspector shall be upon the person so alleging. (9) For the purposes of this section the term " building inspector " includes, where there is no building inspector of the Local Authority, the officer of the Local Authority whose duties include the performance of duties usually undertaken by a building inspector of a Local Authority. (10) Before registering a building units plan the Registrar of Titles may require proof to his satisfaction by statutory declaration or otherwise of the time of commencement of construction of the building to which the plan relates.".