Auctioneers, Stock and Station, Real Estate and Business Agents (Amendment) Act 1957 (NSW)
AUCTIONEERS, STOCK AND STATION, REAL ESTATE AND BUSINESS AGENTS (AMEND MENT) ACT.
. • 4 Act No. IS, 1957.
An Act to include in the Auctioneers, Stock and Station and Real Estate Agents Act, 1941-1954, provisions for licensing and regulating business agents and business sub- agents ; to reconstitute the council constituted under that Act; to increase the annual contributions to the Auctioneers, Stock and Station and Real Estate Agents Fidelity Guarantee Fund established under that Act; to increase the maximum amount payable out of that Fund in respect of theft or fraudulent misapplication by any one licensee; to repeal the Business Agents Act, 1935; for these and other purposes to amend the Auctioneers, Stock and Station and Real Estate Agents Act, 1941-1954, and certain other Acts.; and for purposes connected therewith [Assented to, 12th April, 1957.]
BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legis lative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows :—
1 . (1) This Act may be cited as the "Auctioneers, Stock and Station, Real Estate and Business Agents (Amendment) Act, 1957."
(2) The Auctioneers, Stock and .Station and Real
Estate Agents Act, 1941-1954, is in this Act referred to
as the Principal Act. (3) (3) The Auctioneers, Stock and Station and Real Estate Agents Act, 1941, as amended by subsequent Acts and by this Act, may be cited as the Auctioneers, Stock and Station, Real Estate and Business Agents Act, 1941-
1957.
(4) This Act shall, except where otherwise expressly provided, commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette, which day is in this Act referred to as the "appointed day."
2. (1) On and from the appointed day no license or renewal of a license under the Business Agents Act, 1935- 1941, shall be granted.
(2) The provisions of the Business Agents Act, 1935-1941, shall, on and from the appointed day, apply only with respect to licenses issued under that Act and in force immediately before such commencement, and to persons holding such licenses, and for those purposes shall continue in force in relation to any such license or person, only until such license has expired or is cancelled.
(3) As on and from the first anniversary of the appointed day the Acts mentioned in the Schedule to this Act are to the extent therein specified hereby repealed.
(4) (a) Nothing in this section shall affect the liability of any person under any fidelity bond given pursuant to the Business Agents Act, 1935-1941.
(b) Notwithstanding anything contained insubsections two and three of this section, section twenty-
tinue to apply to and in respect of every such fidelity seven of the Business Agents Act, 1935-1941, shall con bond. (5) Notwithstanding anything contained in sub sections two and three of this section every business agent or subagent under the Business Agents Act, 1935- 1941, shall keep the written record referred to in sub section one of section twenty-two of that Act for a period of not less than three years after the date on which it was made, and shall at all reasonable times produce such written record for inspection if required so to do by any officer of the police force of or above the rank of sergeant
or
or the registrar under the Principal Act, as amended by this Act, or any officer of the council under such Principal Act, as so amended, duly authorised in writing in that behalf by such council, but in the case of such authorised officer, on production of his written authority.
Any person who contravenes any of the provisions of this subsection shall be deemed to be guilty of an offence against the Principal Act, as amended by this Act, and shall be liable to a penalty of not less than two pounds and not exceeding fifty pounds.
(6) Where an application is made for a business agent 's license or a business subagent's license under the Principal Act, as amended by this Act, by any person who a t the time of the application is the holder of a business agent's license or a subagent's license, as the case may be, under the Business Agents Act, 1935-1941, the person making such application shall, for the purposes of subsection six of section twenty-three of the Principal Act, as so amended, be deemed to be already the holder of a license under the said Principal Act, as so amended, of the same class as that referred to in his application or of any other class.
3 . Pa r t I of the Principal Act is amended—
(a) (i) by omitting from the matter relating to Pa r t II in section two the words ' ' and Real E s t a t e " and by inserting in lieu thereof the words ",Real Estate Agents and Busi
n e s s ; " (ii) by omitting from the matter relating to Par t I I I in the same section the words "and Real Estate Agents—ss. 20-50" and by inserting in lieu thereof the words " , Real Estate Agents and Business Agents—ss.
20-50H;"
(iii) by inserting at the end of the same matter the following words, figures and letters:—
"DIVISION 4.—Business Agents and Busi
ness Subagenls—ss. 50A-50H. " (iv)
(iv) by omitting from the matter relating to Part VI in the same section the words ' ' and Real E s t a t e " and by inserting in lieu thereof the words ",Real Estate and Business";
(b) (i) by omitting from subsection one of section three the definition of "Counci l" and by inserting in lieu thereof the following defini tions :—
"Business agent" means any person (whether or not such person carries on any other business) who for reward (whether monetary or otherwise) exercises or carries on business as an agent for perform ing any of the following functions, namely:—
(a) selling, buying or ex
changing or otherwise dealing with or disposing
of; or(b) negotiating for the sale, purchase or exchange or any other dealing with or disposition of,
hotel businesses, residential busi nesses, boarding-house businesses, storekeeping businesses, manufac turing businesses or any trading
businesses whatsoever or any share or interest in or concerning or the goodwill of or any stocks connected with any of such businesses, but does not include a business sub- agent in his capacity as such. "Business subagent" means any per son who is in the direct employ of or acts for or by arrangement with a business agent and who performs for such business agent any of the functions of a business agent as
defined
defined by this section whether his remuneration is by way of salary, wages, commission or otherwise but does not include an employee of a corporation in respect of whom such corporation has taken out a business agent's license.
"Counci l" means the Council of the Auctioneers, Stock and Station Agents, Real Estate Agents and Business Agents constituted under this Act.
(ii) by inserting in the same subsection at the end of the definition of "Licensee" the words "bu t does not include the holder of a business subagent's l icense";
(c) (i) by omitting from the proviso to paragraph (a) of subsection two of section four the words "o r real estate agent" and by insert ing in lieu thereof the words " , real estate agent or business agent" ;
(ii) by omitting from the same proviso the words " a license" and by inserting in lieu thereof the words " a n appropriate license".
4 . (1) Par t I I of the Principal Act is amended—
(a)
by omitting from the heading to the Part the words "and Eeal E s t a t e " and by inserting in lieu thereof the words " , Real Estate Agents
and Business"; (b)
(b)
fey omitting from subsection three of section six the words " a n d Real E s t a t e " and by insert ing in lieu thereof the words ",Real Estate Agents and Business";
(c)
by omitting section seven and by inserting in lieu thereof the following section:—
7. (1) On and from the day appointed pur suant to subsection four of section one of the Auctioneers, Stock and Station, Real Estate and Business Agents (Amendment) Act, 1957 (in this section referred to as the "appointed day") the council shall be reconstituted and shall con sist of—
(a) the persons who immediately before the appointed day were the members of the council as then constituted; and (b) a person, who shall be appointed by the Governor and shall be the holder of a business agent 's license under the Business Agents Act, 1935-1941. (2) Of the members referred to in para graph (a) of subsection one of this section, the member who was appointed under the provisions of subsection three of section eight of this Act to be a member of the council as constituted immediately before the appointed day is in this Act referred to as the "official member" and the remaining members referred to in that para
graph and the member referred to in paragraph (b) of the said subsection one are in this Act
referred to as "elected members".(3) The council as so reconstituted shall appoint one of its members to be chairman of the council.
(4) Subject to the provisions of this Act, the members of the council as so reconstituted shall hold office until the thirtieth day of June, one thousand nine hundred and fifty-eight, and shall be eligible for reappointment or for elec tion as members of the council.
(5)
(5) If immediately before the appointed day there was a vacancy in the office of any member of the council, the Governor may, in respect of that vacancy, appoint a person to the council as reconstituted under this section.
(6) For the purposes only of the applica tion of the provisions of paragraph (g) of section nine of this Act to the member of the council appointed pursuant to paragraph (b) of subsection one of this section, the said para graph (g) shall be deemed to be amended—
(a)
by inserting next after the word " l icense" the words "under this Act or under the Business Agents Act, 1935-1941"; and
(b)
by omitting the words "to renew the same upon its expiry" and by inserting in lieu thereof the words "upon the expiry of his license under the Business Agents Act, 1935-1941, to procure the issue to him of a business agent's license under this Act, and to renew such lastmentioned license upon its expiry' ' .
(d) (i) by omitting from subsection one of section
eight the word "for ty- three" and by inserting in lieu thereof the word "fifty-
eight" ; (ii) by omitting from the same subsection the word " t e n " and by inserting in lieu thereof
the word " th i r t een" ; (iii) by omitting from the same subsection the word " n i n e " and by inserting in lieu thereof
the word " twe lve" ; (iv) by omitting from subparagraph (iii) of paragraph (b) of subsection two of the same section the word " t h r e e " and by inserting
in lieu thereof the word " f o u r " ; (v)
(v) by inserting tat the end of the same para graph the following now subparagraph:—
(iv) two shall be business agents.
(vi) by in-sorting at the end of paragraph (a) of subsection four of the same section the following new subparagraph:—
(iv) business agents.
(vii) by inserting next after subparagraph (iii) of paragraph (b) of the same subsection the following new subparagraph;—
(iv) on the roll of business agents, if he holds a business agent's license,
(viii) by inserting at the end of paragraph (c) of the same subsection the following new subparagraph:—
(iv) as a business agent—unless his name is on the roll of business agents.
(ix) by omitting from paragraph (d) of the same subsection the words "Each such roll shall" and by inserting in lieu thereof the words "The roll of auctioneers, the roll of stock and station agents and the roll of business agents shall each";
(x) by inserting at the end of the same para graph the following words:—
"The roll of real estate agents shall be divided into three parts to be known respec tively as Par t I, Pa r t I I and Par t I I I .
In Par t I of such roll shall be entered the names of all persons eligible for enrolment on such roll whose places of business are situated within the county of Cumberland, excluding therefrom such part of the police district of Wollongong as is within that
county.
county, or the county of Northumberland, excluding therefrom the police district of Newcastle.
In Par t I I of such roll shall be entered the names of all persons eligible for enrol ment on such roll whose places of business are situated within the police districts of Newcastle and Wollongong.
In Par t I I I of such roll shall be entered the names of all persons eligible for enrol ment on such roll whose places of business are situated in any part of New South Wales, not being a part in respect of which they are eligible for enrolment on Par t I or Par t I I of such roll."
(xi) by inserting at the end of paragraph (e) of the same subsection the words "and the persons whose names are on Par t I I I of that roll shall elect one member of the council.
The persons whose names are on Par t I of the roll of business agents shall elect one member of the council and the persons whose names are on Par t I I of that roll shall elect one member of the council";
(xii) by omitting from subsection five of the same section the word "for ty- three" and by
(e) (i) by inserting in subsection one of section inserting in lieu thereof the word "fifty-eight" ; fourteen after the words "five guineas" the words " , or such other amount as may be prescribed in lieu thereof,"; (ii) by inserting in the same subsection after the words " two guineas" the words " , or such other amount as may be prescribed in lieu thereof,".
(2)
(2) (a) The amendments made by subsection one of this section shall not prejudice or affect in any way the continuity of the body corporate constituted under Par t I I of the Principal Act but the same shall continue notwithstanding the provisions of this section.
(b) The said body corporate shall continue and shall be deemed always to have continued notwithstand ing that there are or have been at any time or times vacancies in the offices of all of the members of the body corporate or of any owe or more of them.
(3) (a) For the purposes only of the reconstitution to be effected fey the amendments made by paragraph (c) of subsection one of this section and of any matters neces sary for or incidental to such appointment or reconstitu tion, such amendments shall commence on the day upon which the assent of Her Majesty to this Act is signified.
(b) The persons to be members of the Council of the Auctioneers, Stock and Station Agents, Real Estate Agents and Business Agents as so reconstituted shall assume their offices on the appointed day and on that day the amendments made fey paragraph (c) of subsection one of this section shall come into force for all purposes.
5 . (1) Par t I I I of the Principal Act is amended—
(a)
by omitting from the heading thereto the words "and Real E s t a t e " and by inserting in lieu thereof the words " , Real Estate Agents and Business";
(b)
(b) (i) by inserting next after subsection two of sec
tion twenty the following new subsection:—(2A) No person (either by himself or as a member of a partnership)—
(a) shall 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 a business agent unless he is the holder of a business agent's license under the Business Agents Act, 1935-1941, or a business agent's license; (b) shall 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 as a business subagent unless he is the holder of a subagent's license under the Business Agents Act, 1935-1941, or a business subagent's license. (ii) by inserting in subsection three of the same section after the words " rea l estate agent" the words " o r of a business agent" ;
(iii) by inserting in the same subsection after the word "appropr ia te . " the following new
paragraph:— A corporation shall not act as or carry on the business of a business subagent.
(c) by inserting next after subsection two of sec tion twenty-one the following new subsection:— (2A) (a) No person shall, by virtue of one business agent's license, keep more than one place for the conduct of his business as a busi ness agent.
(b)
(b) Where a person (other than a cor poration) conducts bis business as a business agent at more than one place of business he shall employ at each such place, other than the place at which he is himself in charge, a person holding a business agent's license who shall be in charge at that place.
(e) Where a corporation conducts its business as a business agent at more than one place of business it shall employ at each such place a person in respect of whom it has taken out a license, and such person shall be in charge a t that place.
(d) (i) by inserting in subsection one of section twenty-two after the word " l icense" where lastly occurring the following word and new paragraphs:—
"; or
(d) a business agent's license; or
(e) a business subagent's license.";(ii) by inserting in paragraph (b) of subsection three of the same section after the words " taking out the same a n d " the words
except in the case of a business subagent's license,";
(iii) by inserting next after paragraph (b) of subsection four of the same section the
following new paragraph:— (c) Where the holder of a license desires to surrender ike license held by him he may in writing notify the clerk of the court by which the license was issued that he desires to surrender such license and deliver such license to the clerk of that court. The clerk of the court shall, upon receipt of such notification and license, endorse on the license the word "sur rendered" and forward such notification to the registrar.
(e)
(e,) (i) by omitting subsection three of section twenty-three and by inserting in lieu thereof the following subsection:—
(3) (a.) Where -the applicant resides in New .South Wales—
(i) an application tar a license other than .a business subagent's license shall be lodged with the clerk of the court of the potty sessions district within which the place of business of the applicant in respect of which the application is made is situated or proposed to be situated;
(ii) an application for a business sub- agent 's ' license shall be lodged with the clerk of the (court of the petty sessions distr ict -within which the applicant (resides.
(b) Where under this subsection there is more than one •court with the clerk of which an application may be lodged such application shall be lodged—
(i) in the case of an application for a license other than a business sub- agent's license, with the clerk of
the court within such district nearest to the place where the place of business to which the application relates is situated tor proposed to be situated.; o r (ii) in the case of an application for a business subagent's license, with the clerk of the court within such district nearest to the place where the applicant resides.
(ii)
(ii) by inserting next after paragraph (b) of subsection four of the same section the following new paragraph:—
(bi) Where the application is for a busi ness agent's license and the applicant resides in any other State of the Common wealth of Australia or in the Australian Capital Territory the application shall be lodged with the clerk of any court of petty sessions.
(iii) by inserting in paragraph (a) of subsection six of the same section after the words "prescribed fees a n d " the words " , except in the case of a person applying for a business subagent's license,";
(iv) by inserting at the end of paragraph (b) of the same subsection the words " o r until the expiration of twelve months after the date upon which such provisional license took effect whichever first occurs";
(v) by inserting in subsection eight of the same section after the words "prescribed fees a n d " the words " , except in the case of a person applying for a business subagent's license,";
(vi) by inserting in subsection nine of the same section after the words "prescribed fees and" the words " , except in the case of a
person applying for a business subagent's license,"; (vii) by inserting next after subsection ten of the same section the following new subsec tions :— (10A) A license shall not, after the expira tion of the prescribed period from the day appointed pursuant to subsection four of section one of the Auctioneers, Stock and Station, Real Estate and Business Agents (Amendment) Act, 1957, be granted to an
applicant,
applicant, not being a corporation, nor to a corporation in respect of an employee, unless suck applicant or employee lias—
(a) passed the prescribed examination conducted by the Department of Technical Education or such other examination as may be prescribed; or (b) produced to the court satisfactory evidence that he is competent to perform the functions and duties generally performed by the holder of such a license. This subsection shall not apply to any per son to whom an auctioneer's license (being a general license) or a business agent's license may be granted pursuant to the provisions of section twenty-six or twenty- seven of this Act.
(l0B.) A business subagent's license shall not be granted to any person who is not a resident of New South Wales.
(f) (i) by omitting from subparagraph (i) of paragraph (a) of subsection one of section twenty-five the words "fifteen pounds" and by inserting in lieu thereof the words "sixteen pounds"';
(ii) by omitting from subparagraph (ii) of the
same paragraph the words "five pounds" and by inserting in lieu thereof the words " s ix pounds'"'; (iii) by omitting from subparagraph (iii) of the same paragraph the words " two pounds" and by 'inserting in lieu thereof the words
" three pounds'"; (iv) by omitting from subparagraph (iv) of the same paragraph the words " two pounds" and by inserting in lieu thereof the words
" three pounds ' ' ; (v)
(v) by omitting from paragraph (b) of the same subsection the words "one pound" and by inserting in lieu thereof the words
" two pounds"; (vi) by omitting from paragraph (c) of the same subsection the words "one pound" and by inserting in lieu thereof the words
" two pounds" ; (vii) by omitting paragraphs (d), (e) and (f) of the same subsection and by inserting in lieu thereof the following paragraphs:—
(d) for an auctioneer's license (being a general license) and any one or more of the following licenses:— a stock and station agent's license, a real estate agent's license or a business agent's license— sixteen pounds;
(e) for an auctioneer's license (being a country license) and any one or more of the following licenses:— a stock and station agent's license, a real estate agent's license or a business agent's license— six pounds;
(f)
for an auctioneer's license (being a district license or a primary
products license) and any one or more of the following licenses:—
a stock and station agent's
license, a real estate agent's license
or a business agent's license—fourpounds; (fi) for a business agent's license— three pounds;
(fii) for a business subagent's l i cense -
ten shillings;
(viii)
(viii) by omitting from paragraph (h) of the same subsection the words "five pounds" and by inserting in lion thereof the words "s ix pounds";
(ix) by omitting from subsection three of the same section the words ' 'not exceeding one pound" ;
(x) by omitting from subsection four of the same section the words "Auctioneers, Stock and Station and Real Estate Agents Administration Account" and by inserting in lieu thereof the words "Auctioneers, Stodk and Station, Real Estate and Busi ness Agents Administration Account";
(g) (i) by inserting in subsection one of section twenty-six after the words and symbols "(being a general license)" the words "o r a business agent's license";
(ii) by inserting in the same subsection after the word "auct ioneer" the words " 'or a business agent, as the case may be ," ;
(iii) by inserting in the same subsection after the words and symbols "(being general l icenses)" the words " o r business agents' licenses, as the case may be , " ;
(iv) by inserting next after subsection three of
the same section the following new sub
section:— (3A) Any notification declaring that the Business Agents Act, 1935-1941, shall extend and apply to the granting in New South Wales of general licenses to residents in any other State, Which was published pur suant to section ten of that Act and which was still in force immediately before the day appointed pursuant to subsection four of section one of the Auctioneers, Stock and Station, Read Estate and Business
Agents
Agents (Amendment) Act, 1957, shall, as from such day and until revoked by a noti fication published pursuant to this Act, have and take effect as if it were a notification published pursuant to subsection one of this section declaring that, as from such day, and while the notification remains in force, this Act shall extend and apply to the grant ing in New South Wales of business agents licenses to residents in such other States as is mentioned in such notification.
(v) by inserting in paragraph (a) of sub section four of the same section after the words and symbols "(being a general l icense)" the words " o r a business agent's l icense";
(vi) by inserting in the same paragraph after the word "auct ioneer" the words "o r a business agent, as the case may be , " ;
(h) (i) by inserting in section twenty-seven after the words and symbols "(being general licenses or country licenses or district l icenses)" the words " o r business agents licenses";
(ii) by inserting in the same section after the words and symbols ' ' (being a general license or a country license or a district l icense)"
where firstly occurring the words " o r a business agent's license"; (iii) by inserting in the same section after the words "auctioneer's license" where secondly occurring the words " , or a busi ness agent's license, as the case may b e " ;
(iv) by inserting in the same section after the words and symbols "(being a general license or a country license or a district l icense)" where secondly occurring the words " o r a business agent's l icense";
(v)
(v) by inserting in the same section after the words "auctioneer's license" where lastly occurring the words " , or a business agent's license, as the ease may be , ' ' ;
(i) by omitting from section twenty-eight the words " o r a renewal thereof" wherever occurring and by inserting in lieu thereof the words " o r a business agent's license, or a renewal of either such license,";
(j) by inserting at the end of section twenty-nine the following anew subsection:— (4) The foregoing provisions of this section shall apply mutatis mutandis to and in respect of a business subagent's license and the holder of a business subagent's license.
(k) (i) by inserting in subsection one of section thirty-one after the word licensee" the words " o r the employee, or the holder of a business subagent's license' ' ;
(ii) by inserting in paragraph ,(b) of subsection four of the same section after the word "employee" the words " , or holder of a
business subagent's license,"; (iii) by inserting next after the same subsection the following new subsection::—
(4A) An appeal under this section in any case to which paragraph (a) of subsection one of this section applies shall not be com menced after the expiration of twenty-one days after the date of refusal of the appli cation or the date of the order under sec tion twenty nine of this Act, as the case may he.
(1)
(1) by omitting from section thirty-two the words " o r a real estate agent" and by inserting in lieu thereof the words " , a real estate agent, a busi ness agent or a business subagent,";
(m) (i) by inserting next after subsection three of section thirty-four the following new subsections:—
(3A) Every business subagent shall have a registered address within New South "Wales.
(3B) The address specified in the appli cation for a business subagent's license as the address at which the applicant then resides, shall, upon the grant of the appli cation, be deemed for the purposes of this Act to be the registered address of the business subagent.
(ii) by inserting in subsection four of the same section after the words "registered office" the words " o r the registered address" ;
(iii) by inserting in the same subsection after the word "l icensee" the words " o r the holder of the business subagent's license, as the case may be , ' ' ;
(iv) by inserting in subsection five of the same firstly occurring the words " o r if any licensed business subagent acts or carries on as a business subagent";
section after the word "bus iness" where
(n)
by inserting at the end of paragraph (b) of subsection three of section thirty-five the follow ing new subparagraph:—
" ( iv ) as a business agent—unless he is the
holder of a business agent's l icense";
(o)
(o) (i) by inserting at the end of subsection one of section thirty-six the words "and in any other case the trust account shall be in the name of the licensee. The words 'Trust Account' shall appear in the name of the trust account and in the description of the trust account in the books and records of the licensee and also on all cheques drawn on the trust account";
(ii) by inserting next after subsection four of the same section the following new subsec tion :—
(4A) Where any licensee neglects or fails to comply with any of the provisions of this section by reason of his neglect or failure to pay any moneys into a bank in New South Wales to a trust account or to retain any such moneys therein, the offence shall con tinue until the said moneys are paid to the person for or on whose behalf they were received, or disbursed in such manner as may be directed by such person.
(p) (i) by inserting in subsection one of section thirty-eight after the word "l icensee" where secondly occurring the words "and such other written records relating to his business as licensee as may be prescribed";
(ii) by omitting from the same subsection the
word " r e c o r d " where secondly occurring and by inserting in lieu thereof the word
" r eco rds" ;(iii) by omitting from subsection two of the same section the words "The written record" and by inserting in lieu thereof the words "Every such written record";
(iv) by omitting from subsection three of the same section the words " the written record" and by inserting in lieu thereof the words " a n y such written record";
91443—4 (q) (q)
by omitting from subsection one of section 38B the word " r eco rd" and by inserting in lieu
thereof the word " r e c o r d s " ; (r)
by inserting next after section 38B the following- new section:—
38c. (1) Every business agent—
(a)
shall make or cause to be made a true statement in writing in the prescribed form and with the prescribed particu lars 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 employee or a subagent or otherwise) by him in connection with his business as a business agent and shall, for a period of three years after the date on which the statement was made or caused to be made, keep such statement at his principal place of business in New South Wales;
(b)
shall, at all reasonable times, produce such statement for inspection if required to do so by the registrar, a member of the police force of or above the rank of sergeant, or an officer of the council duly authorised by the
council in writing in that behalf, but in the case of such authorised officer
upon production of his written authority. (2) Any business agent who—
(a)
commits any contravention of or fails to comply with any of the provisions of this section; or
(b)
makes any false entries in any such statement;
shall be guilty of an offence against this Act.
(s)(s) (i) by inserting in subsection one of section thirty-nine after the word "bus iness" the words " , and the holder of a business subagent's license shall not, except with such approval and subject to any such conditions, knowingly employ in any way whatever in connection with his work as a business subagent,";
(ii) by inserting in paragraph (a) of the same subsection after the word " A c t " where lastly occurring the words " o r whose license under this Act or the Business Agents Act, 1935, has been cancelled, unless a license has been subsequently granted to h im" ;
(iii) by inserting at the end of the same sub section the following word and new paragraphs:—
or
(c)
who is for the time being dis qualified under this Act from holding a certificate of registration as a real estate salesman, or whose certificate of registration as a real estate salesman has been cancelled, unless a certificate has been sub sequently granted to him; or
(d) whose application for a certificate
of registration as a real estate salesman under this Act has been refused, unless such an application has been subsequently granted. (iv) by inserting at the end of subsection two of the same section the words " o r in the work of a business subagent";
(v) by inserting in subsection four of the same section after the word "licensee" the words " o r any holder of a business subagent's license";
(t)
(t)
by inserting next after section thirty-nine the following new section :—
39A. (1) A licensee or a holder of a business subagent's license shall not knowingly enter into any arrangement or act in conjunction with any person, not being an employee in his business as a licensee or in his work as a licensed business subagent, who is not licensed under this Act whereby such person is entitled to a share of the commission, fee, gain or reward payable to such licensee or the holder of such a license in respect of any transaction by or with him as a licensee or holder of a business subagent's license, or generally.
(2) A licensee shall not, without the prior consent in writing of the registrar, carry on business as such or advertise or in any manner whatsoever hold out that he carries on business as such—
(a)
under the name, or a name nearly resembling the name, whereunder a person whose license has been can celled under or in pursuance of this Act or the Business Agents Act, 1935, was carrying on business as a licensee immediately before his license was can celled; or
(b) under a name implying or capable of
being construed as implying that he is the successor in the business, or in any way interested or concerned in con tinuing the business as a licensee, of a person whose license has been cancelled under or in pursuance of this Act or the Business Agents Act, 1935: Provided that nothing in this subsection shall prohibit the carrying on by a licensee of his business as such under his true name without any addition or adaptation whatsoever.
(u)
(u ) (i) by omit t ing from section for ty the words
" o r a rea l es ta te a g e n t " and by inser t ingin lieu thereof the words " , a real es ta te
agent or a business a g e n t " ; (ii) by inserting at the end of the same section the following new subsection:—
(2) E v e r y business subagent shall, on demand, produce his license to any member of the police force of or above the r ank of sergeant , or to any person with whom such business subagent is t r ansac t ing or a t t empt ing to t r ansac t any business on behalf of a
business agent . (v) by inserting in section forty-one after the word
" l i c e n s e e " the words " o r holder of a business
subagen t ' s l i c e n s e " ; (w) by inser t ing a t the end of p a r a g r a p h (c) of sub section one of section forty-two the following
new p a r a g r a p h : —
(d)
as a business agent or business sub- agent unless he was the holder of a business agen t ' s license or of a busi ness subagent ' s license, as the case may be, a t the t ime of doing or pe r forming such service.
(x) (i) by omit t ing from p a r a g r a p h (a) of section for ty- three the words " , or a name other
t han his own n a m e , " ;
(ii) by inser t ing next after the same p a r a g r a p h the following new p a r a g r a p h : — (ai) where such licensee is an indi vidual ca r ry ing on business unde r a business name reg is te red or deemed to be regis tered under any Act for the t ime being in force re la t ing to the reg is t ra t ion of busi ness names, then ei ther his name or such business name and the address of his place of bus iness ;
(y)
(y)
by inserting next after section fifty the follow ing new Division:—
DIVISION 4.—Business Agents and Business Subagents.
50A. Any business agent or business subagent who by any wilfully false, misleading or decep tive s ta tement , representa t ion or promise or by any wilful concealment of mater ia l fact, induces or a t t empt s to induce any person to enter into an agreement or contract for the sale or pur chase or lease of a business or under tak ing shall be guil ty of an offence and shall be liable to a penal ty of not less than ten pounds and not ex ceeding two hundred pounds or to impr isonment for a te rm not exceeding two years , or both.
50B. (1) E v e r y business agent and business subagent shall keep in a legible manner a wr i t t en record containing full pa r t i cu la r s of every busi ness or share or in teres t in or concerning or the goodwill of or any stocks connected with a busi ness which has been en t rus ted to him for the exercise or per formance in relat ion there to of any of the functions of a business agent as denned by this Act.
(2) Such wri t ten record shall be open
t r a r , a member of the police force of or above to inspection a t all reasonable times by the regis the rank of sergeant , or an officer of the council duly au thor ised in wr i t ing in tha t behalf and in the case of such author ised officer upon p ro duction of his wr i t ten au thor i ty , and every business agent or business subagent upon being requi red so to do shall produce such wr i t ten record for inspection by the r eg i s t r a r , such member of the police force or such author ised officer.
(3)
(3) A n y person who—
(a)
wilfully delays or obstructs the regis t r a r , such member of the police force or such author ised officer in the exercise of his powers , author i t ies , dut ies and functions under subsection two of th is section; or
(b)
being a business agent or business sub- agen t refuses or fails, upon being requi red to produce any such wr i t t en record kept by h im under this section, to do so ;
shall be guil ty of an offence aga ins t this Act.
50c. The holder of a business agen t ' s license shall not, in any w a y whatever in connection wi th his business, knowingly employ as a busi ness subagent any pe r son who is not the holder of a business subagen t ' s license.
50D. Notwi ths tanding any th ing in any Act, no action shall be brought upon any contract or sale of any of the businesses re fe r red to in the definition of " B u s i n e s s a g e n t " in section th ree of th is Act or any share or in te res t in or con cerning any of such businesses, if the agreement or the memorandum or note thereof on which such action is b rought is signed by any person
other than the p a r t y to be charged therewith, unless such person so signing be thereunto lawfully author ised in wr i t ing signed by the
p a r t y to be so charged.50E. (1) Notwi ths tanding any th ing in this Act or any law to the cont rary , no business subagent shall c a r r y out any of the work of a business subagent unless such business subagent was there tofore lawfully author ised in wr i t ing thereunto by a business agent .
(2)
(2) E v e r y business subagent shall a t all reasonable t imes produce the wr i t t en au thor i ty re fe r red to in subsection one of this section whenever demanded by the reg i s t r a r , a member of the police force of or above the r ank of ser geant or an officer of the council duly au thor ised in t ha t behalf, but in the case of such au thor i sed officer upon product ion of his wr i t ten au thor i ty .
(3) Any business subagent who "makes any f a k e represen ta t ion (whether verbally or in wr i t ing or by conduct) to any person to the effect t ha t such business subagent is au thor ised to act as a business subagent for any specified business agent shall be guil ty of an offence agains t this Act.
50F. Noth ing in this Act shal l be construed as requi r ing any holder of a business s u b a g e n t ' s license, so far as he per forms for any holder of a business a g e n t ' s license any of the functions of a business agent and is duly author ised there unto by such business agent , to hold a business agen t ' s license under this Act, or as requi r ing any holder of a business a g e n t ' s license to hold a business subagen t ' s license under this Act.
50G. E v e r y business subagent shall, as soon as pract icable after receiving any moneys from or on behalf of any person in respect of any t r ans action, in his capaci ty as a business subagent, pay such moneys to the business agent for whom
he is act ing in such t ransac t ion . 50H. E v e r y business agent shall be personal ly liable for all moneys received from or on behalf of any person by any business subagent act ing in his capaci ty as a business subagent for such
business agent .
(2) (a) The amendments made by s u b p a r a g r a p h
(ii) of p a r a g r a p h (b) of subsection one of this section shall not apply to a corporat ion which is the holder of a
business
business a g e n t ' s license under the Business Agents Act, 1935-1941, or on whose behalf a person has taken out a license under t ha t Act while such license is in force but upon the expira t ion of such license such amendments shall thereupon in all respects have full force and effect with respect to such corporat ion.
(b) The amendment made by p a r a g r a p h (c)
of subsection one of this section shall not apply to any person who is the holder of a business agen t ' s license issued under the Business Agents Act, 1935-1941, nor to any corporat ion which is the holder of any such license or on whose behalf any person has taken out any such license, while such license is in force, but upon the expira tion of such license such amendments shall thereupon in all respects have full force and effect with respect to such person or corpora t ion as the case may be.
(3) All moneys which immediately before the appointed day stood to the credit of the Auct ioneers , Stock and Sta t ion and Rea l E s t a t e Agents Adminis t ra tion Account, and all investments which immediately before t ha t day were held by the council in connection wi th tha t account shall upon such day respectively be moneys s tand ing to the credit of and investments held by the council in connection with the Auctioneers , Slock and Sta t ion, Real E s t a t e and Business Agents Adminis
| t r a t ion | Account. |
(1) P a r t I V of the Pr inc ipa l Act is amended—
(a) (i) by omitt ing from the definition of " R e a l
es ta te d e a l e r " in section fifty-one the words
" l a n d in a l l o t m e n t s " and by inser t ing in
lieu thereof the words "a l l o tmen t s of l a n d " ; (ii)
(ii) by omit t ing the definition of " R e a l es ta te s a l e s m a n " in the same section and by inser t ing in lieu thereof the following definition:—
" R e a l es ta te s a l e s m a n " means a person who, for or on behalf of any rea l es ta te agent or r ea l es ta te dealer, induces or a t t empt s to induce or negot ia tes with a view to inducing any person—
(a) to buy, sell or otherwise
dispose of any land, including
any al lotment of l and ; or
(b) to make any offer to buy, sell or otherwise dispose of any land, including any al lotment of l and ; or (c) to accept any offer to buy, sell or otherwise dispose of any land, including any al lotment of l and ; or (d) to enter into any contract for the purchase , sale or o ther disposal of any land, including any al lotment of land, but does not include an auctioneer, a stock and s ta t ion agent or a rea l
es ta te agent .
(b) by inser t ing in p a r a g r a p h (a) of subsection one of section fifty-two af ter the word " A c t " where last ly occurr ing the words " o r whose license under this Act or the Business Agents Act, 1935, h a s been cancelled, unless a license has been
subsequently g r an t ed to h i m " .
(2) The amendments made by subsection one of th is section shall commence upon the expira t ion of a per iod of three months af ter the appointed day.
(1) P a r t V I of the Pr inc ipa l Act is amended—
(a) by omitting from the heading thereto the words
" a n d P e a l E s t a t e " and by inser t ing in lieu
thereof the words " , Pea l E s t a t e and B u s i n e s s " ;
(b) by omitting from subsection one of section sixty-five the words " a n d Real E s t a t e " and by inser t ing in lieu thereof the words " , P e a l
E s t a t e and B u s i n e s s " ; (c) by omitting from section sixty-six the words
" a n d P e a l E s t a t e " and by inser t ing in lieu
thereof the words " , P e a l Es t a t e and B u s i n e s s " ;
(d)
(i) by omit t ing from subsection three of section seventy-one the words " n o t less
t h a n " wherever occurr ing;
(ii)
by omitting from the same subsection the words " s h a l l not be required to pay any fur ther amount by way of contr ibut ions under this sec t ion" and by inser t ing in lieu thereof the words " s h a l l af ter pay ing such
amount pay annually a contr ibution of one
p o u n d " ; (iii) by inserting at the end of the same sub
section the following new p a r a g r a p h :— This subsection shall apply whether any such amount was paid before or after the day appointed pu r suan t to subsection four of section one of the Auct ioneers , Stock and Stat ion, Real E s t a t e and Business Agents (Amendment) Act, 1957.
(e)
(c) (i) by inser t ing in subsection one of section
seventy-four af ter the words " r e a l es ta te
a g e n t " the words " o r a business a g e n t " ; (ii) by inserting next after subsection two of the same section the following new sub section :—
(2A) NO person shall have any claim agains t the fund in respect of any theft or f raudulent misappl icat ion committed in the course of the business of a business agent unless such theft or f raudulent mis applicat ion was committed a t a t ime when such business agent was the holder of a business a g e n t ' s license under this Act.
(iii) by omitting from subsection three of the same section the words " t h a t m a y be committed after such commencement" and by inser t ing in lieu thereof the words " , in respect of which any claim agains t the fund a r o s e , " .
(f)
by inserting at the end of subsection six of section seventy-five the following new sub section :—
(7) I n respect of any theft or f raudulent misappl icat ion after the day appoin ted p u r s u a n t to subsection four of section one of the Auct ioneers , Stock and Stat ion, Real E s t a t e and
Business Agents (Amendment ) Act, 1957, subsections three and four of this section shall be read as though the words "five h u n d r e d " were omit ted theref rom and the words " t e n
t h o u s a n d " subst i tu ted therefor .
(g)
(g)
by omit t ing section seventy-eight and by inser t ing in lieu thereof the following sec
t ion :— 78. (1) Any proceedings brought against the council in relat ion to any claim upon the fund shall be by action a t law as for a debt due by the council and shall be brought—
(a) where the amount claimed does not exceed fifty pounds in a court of pet ty sessions holden before a s t ipendiary m a g i s t r a t e ; (b) where the amount claimed exceeds fifty
pounds but does not exceed one thousand pounds in a distr ict cour t ;
(c) where the amount claimed exceeds one thousand pounds in the Supreme Court .
(2) I n any of the actions refer red to in subsection one of this section all defences which would have been available to the licensee in relat ion to whom the claim arose shall be available to the council, and in any such action all questions of costs shall be in the discret ion of the court or the pres id ing judge.
(3) Any order for the payment of costs made by a court of pe t ty sessions under the provisions of subsection two of this section shall opera te as an order for the recovery of money
under the Small Debts Recovery Act, 1912, as amended by subsequent Acts, and be enforceable as such under the provis ions of tha t Act, as so
amended.
(2) All moneys which immediate ly before the
appointed day Stood to the credit of the Auctioneers ,
Stock and Sta t ion and Real E s t a t e Agents Fideli ty
| Guaran tee F u n d or the Auct ioneers , Stock and | Sta t ion |
and Real E s t a t e Agents Fidel i ty Guarantee Account shall upon tha t day become and be respectively moneys
s tanding
s tanding to the credit of the Auct ioneers , Stock and Stat ion, Real E s t a t e and Business Agents Fidel i ty
Guaran tee F u n d and the Auct ioneers , Stock and Stat ion,
Real E s t a t e and Business Agents Fidel i ty Guaran tee Account.
(3) All investments which immediately before the appointed day were held by the council in connection with the Auct ioneers , Stock and Sta t ion and Real E s t a t e Agents Fidel i ty Guaran tee F u n d shall upon tha t day become and be investments held by the council in con nection with the Auct ioneers , Stock and Stat ion, Real
E s t a t e and Business Agents Fidel i ty Guaran tee Fund . P a r t V I I of the Pr inc ipa l Act is amended by inser t
ing next af ter section eighty-four the following new
sect ion:—
8.
84A. (1) A n y licensee or rea l es ta te dealer, as defined in section fifty-one of this Act, who publishes or causes to be publ ished in the course of his business as such, or the holder of a business subagen t ' s license who publishes or causes to be published in connection wi th any m a t t e r in which he is ac t ing as a business subagent, any s ta tement which—
(a)
is intended or apparently intended by such licensee or real es ta te dealer or holder of a business subagen t ' s license to promote the
sale of any land or l ivestock or any bus iness ; and
(b) is to his knowledge false or misleading in
any ma te r i a l par t i cu la r ,
shall be gui l ty of an offence agains t this Act.
(2) A s ta tement shall be deemed to be pub
lished within the meaning of this section if i t i s —
(a)
inserted in any newspaper or any other pub lication p r in ted and published in New
South W a l e s ; or
(b)
(b) publicly exhibited—
(i) in, on, over or under any building, vehicle or place (whether or no t a public place and whether on land
or w a t e r ) ; or (ii) in the air in view of persons being or pass ing in or on any s t reet or public p lace ; or
(c) contained in any document gra tu i tous ly sent or delivered to any person or th rown or loft upon premises in the occupation of
any pe r son ; or
(d) broadcas t by wireless t ransmission.
(3) I n any proceedings under th i s section agains t a licensee or a rea l es ta te dealer or the holder of a business subagen t ' s license for publ ishing any s ta tement aforesaid or causing the same to be pub lished, if i t is proved t h a t such s ta tement was false or mis leading in any mate r ia l par t icu lar , the licensee or the rea l es ta te dealer or the holder of the business subagen t ' s license who publ ished the s ta tement or caused the same to be published shall be deemed to have publ ished the same or to have caused the same to be published wi th knowledge of i t s falsi ty or mis leading character , as the case may be, unless he
proves t h a t hav ing t aken all reasonable precaut ions aga ins t commit t ing an offence tinder th is section he h a d reasonable grounds to believe and did believe t h a t the s ta tement was t rue and had no reason to suspect t ha t the s ta tement was false or misleading.
(4) Notwi ths tanding any proceedings aga ins t
any person for an offence under this section (whether resul t ing in a conviction or otherwise) such pe r son shall r emain liable to all civil proceedings in like m a n n e r as if the proceedings for an offence had not been taken.
(5 )
(5) This section shall be read and construed as in aid of and not in derogation from any enactment or law relating to false or misleading advertisements or other statements.
(6) In this section "newspaper" includes any
periodical publication.
SCHEDULE.
No. of Act. Name of Act. Extent of Repeal.
1935, No. 7 ... Business Agents Act, The whole. 1935.
1941, No. 28... Auctioneers, Stock and Part V and the matter
Station and Real Estate relating to Part V in
Agents Act, 1941. section two.
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