Conveyancers Licensing Act 1992 (NSW)
CONVEYANCERS LICENSING ACT 1992 No. 55
NEW SOUTH WALES TABLE OF PROVISIONS PART 1—PRELIMINARY
1. Short title
2. Commencement
3. Definitions
4. Conveyancing work5. Disqualified persons
PART 2—LICENSING
Division 1—Preliminary
6. Effect of licence
7. Procedure for obtaining a licence
8. Licensee to have paid fidelity contribution
9.
Licensee to be covered by an approved policy of professional indemnity insurance
Division 2—Certificates of eligibility
10. Applications for certificates of eligibility
11.
Committee may require further particulars 12. Determination of applications
13. Imposition of conditions
14. Notice of Committee’s decision to be given
15. Duration of certificates of eligibility
16. Withdrawal of certificates of eligibility
ii
Conveyancers Licensing Act 1992 No. 55 Division 3—Licences
17. Applications for licences
18. Determination of applications
19. Duration of licences
20. Suspension and cancellation of licences
Division 4—Appeals
21. Appeals
PART 3—CONVEYANCING PRACTICE
Division 1—GeneraI
22. Effect of contravention of Division 1
23. Fees
24. Nature of conveyancing business
25. Attendance at business premises
26. Business names
27. Sharing of receipts with unqualified persons
28. Employment of disqualified persons
29. Sharing staff of legal practitioners and real estate agents etc.
30. Advertising
31. Conduct of other businesses
32. Committee may establish guidelines for conduct of conveyancing business
Division 2—Trust money and controlled money
33. Money received by licensee on behalf of another
34. Keeping of accounts
35. Audits
36. Deposit of trust funds with Law Society
37. Money not claimed from licensee
38. Relief for bankersDivision 3—Inspection of trust accounts and investigations generally
39. Appointment of trust account inspectors etc.
40. Production of records
41. Inspectors' reports42. Costs of inspection and investigation
43. Secrecy
44. Obstruction of inspectors etc.
PART 4—CLAIMS ARISING FROM FAILURES TO ACCOUNT
Division l—Preliminary
45. Definitions 46. Failure to account
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Division 2—Fidelity insurance
47. Association to take out fidelity insurance
48. Contributions by licensees
Division 3—Claims against the Association in respect of failures to account 49. Claims against the Association
50. Reimbursement of licensees and others
51. Final date for making claims
52. Claims must be pursued
53. Determination of claims
54. Avoidance of double compensation
55. Ceiling on payments by the Association
56. Proceedings against the Association
57. Association subrogated to rights etc. of claimants
58. Insufficiency of the assets of the Association
PART 5—MANAGEMENT AND RECEIVERSHIP
Division l—Preliminary
59. Definitions
60. Associate
61. Failure to account
Division 2—Management
62. Appointment of manager
63. Qualifications for appointment as manager
64. Powers of manager
65. Management continues under receivership
66.
Acts of manager to be taken as acts of licensee 67. Manager may be reimbursed for damages
68. Payment of expenses of management
69. Manager to report to Council and Association
70. Trust money
71. office accounts
72. Termination of management
73. Obstruction of managers
Division 3—Receivership
74. Supreme Court may appoint receiver 75. Receivership may extend to property of licensee’s associate 76. court to be closed 77. order to be served 78. Receiver may take possession of property
79. Information about receivable property
80. Stop order on bank account
81. Improper dealing with property
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Conveyancers Licensing Act 1992 No. 55
82. Recovery of compensation for disposal of receivable property
83. Receiver may give certificate
84.' Receiver. taken to be beneficially entitled to property 85. Receiver may deal with property 86. Other powers of receiver 87. Notice to claim receivable property 88. Lien for costs on receivable property 89. Examination by receiver 90. Property not dealt with by receiver 91. Investment of money by receiver 92. Receiver may be reimbursed for damages 93. Payment of expenses of, receivership 94. Supreme Court may review expenses of receivership 95. Receivable property not to be attached 96. Applications for directions by receiver, licensee etc. 97. Supreme Court may give general directions to receiver 98. Receiver to report to the Supreme Court etc. 99. Termination of appointment of receiver 100. Obstruction of receivers
PART 6—DISCIPLINARY PROCEEDINGS
Division 1—Preliminary
101. Application to ex-licensees
102. Conduct amounting to an offence
103. The Legal Profession Conduct Review Panel
104. The Legal Profession Standards Board
105. The Legal Profession Disciplinary Tribunal
Division 2—Complaints against licensees106. Complaints
107. Council may require further particulars
108. Summary dismissal of complaints
109. Investigation of complaints
110. Consultation with the Committee
111. Decisions of the Council
112. Council may make complaint after consultation with the Committee
Division 3—Review of the Council's decisions
113. Applications for reviews
114.. Composition of the Panel 115. Reviews 116. Recommendations of the Panel 117. Determinations by the Attorney General
vConveyancers Licensing Act 1992 No. 55
Division 4—Unsatisfactory professional conduct
118. Composition of the Board
119. Hearings
120. Parties
121. Hearings to be conducted in camera
122. Power to summon witnesses and take evidence
123. Power to obtain documents
124. Release of information
125. Determinations of the Board
Division 5—Review of the Board's decisions
126. Applications for reviews
127. Composition of the Tribunal
128. Parties
129. Reviews
130. Decisions of the Tribunal
131. Professional misconduct
Division 6—Professional misconduct 132. Composition of the Tribunal
133.
Hearings 134. Parties
135. Hearings to be conducted in public
136. Power to summon witnesses and take evidence
137. Power to obtain documents
138. Release of information
139. Determinatians of the Tribunal
140. Appeals from orders of the Tribunal
Division 7—Miscellaneous
141. Enforcement of orders
142. Payment of fines and costs
143. Costs of administering Part 6
144. Reports
145. Protection from liability
PART 7—THE CONVEYANCERS LICENSING COMMlTEE
146. Constitution of the Committee
147. Membership of the Committee
148. Functions of the Committee
149. Education subcommittee
150. Insurance subcommittee
151. Advisory subcommittees
152. Staff etc. of the Committee
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PART 8—MISCELLANEOUS
153. Committee and Association to submit annual reports
154. Functions of the Council
155. Functions of the Association
156. Delivery up of documents
157. Auditors
158. Register of licensees
159. Evidentiary certificates
160. Proceedings for offences
161. Order restraining breach of this Act 162. Regulations 163. Amendment of other Acts
164. Savings, transitional and other provisions
SCHEDULE 1—THE CONVEYANCERS LICENSING COMMITTEE
SCHEDULE 2—AMENDMENT OF OTHER ACTS
SCHEDULE 3—SAVINGS, TRANSlTIONAL AND OTHER PROVISIONSDICTIONARY OF WORDS AND EXPRESSIONS
affairs Law Society Association licence Board licensee committee money controlled money money received conveyancing business Panel conveyancing work professional misconduct costs record council Statutory Interest Account disqualified person Tribunal exercise a function trust money firm of licensees unsatisfactory professional conduct function CONVEYANCERS LICENSING ACT 1992 No. 55
NEW SOUTH WALES
Act No. 55, 1992
An Act to provide for the licensing and regulation of conveyancers; and for other purposes. [Assented to 8 October 1992]
Conveyancers Licensing Act 1992 No. 55
The Legislature of New South Wales enacts:
PART l—PRELIMINARY
Short title
1. This Act may be cited as the Conveyancers Licensing Act 1992.
Commencement
2. (1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2).
(2) The following provisions commence on the date of assent:
(a) Parts 1 and 7;
(b)
Schedules 1, 2 and 3 (except for item (9) of the matter in Schedule 2 that relates to the Legal Profession Act 1987);
(c) the Dictionary at the end of the Act.
Definitions
3. (1) In this Act, the words and expressions appearing in the
Dictionary at the end of this Act have the meanings given to them in that
Dictionary.
(2) Certain words and expressions used in Part 4 (Claims arising from Failures to Account) are defined in Division 1 of that Part.
(3) Certain words and expressions used in Part 5 (Management and Receivership) are defined in Division 1 of that Part.
Conveyancing work 4.
(1) For the purposes of this Act, conveyancing work is legal work
transfers or extinguishes a legal or equitable interest in residential
property or that otherwise affects residential property.Without limitation, conveyancing work includes:
legal work involved in preparing any document (such as an
agreement, conveyance, transfer, lease or mortgage) that isnecessary to give effect to any such transaction; and carried out in connection with any transaction that creates, varies,
exchange or registration of documents) that is consequential or legal work (such as the giving of advice or the preparation, perusal,
ancillary to any such transaction; and Conveyancers Licensing Act 1992 No. 55
(c)
any other legal work that is prescribed by the regulations as constituting conveyancing work for the purposes of this Act.
(3) However, conveyancing work does not include the carrying out of any work for the purpose of:
(a) commencing or maintaining legal proceedings; or
(b)
establishing a corporation or varying the memorandum or articles of association of a corporation; or
(c)
preparing a mortgage. otherwise than where the mortgage is prepared in connection with an agreement for sale of residential property and:
the mortgagee is the vendor of the property; or
the mortgagee has nominated the purchaser of the property as
the mortgagor and has specified the terms of the mortgage
independently of any advice given by the person by whomthe mortgage is being prepared; or
(d) creating, varying or extinguishing a trust; or
(e) preparing a testamentary instrument; or
(f)
creating, varying, transferring or extinguishing a legal or equitable interest in animals or in the goodwill or stock-in-trade of a business; or
(g)
obtaining the consent of any public or local ’authority to the subdivision of land, the erection of a building or the carrying out of development (within the meaning of the Environmental Planning and Assessment Act 1979) on land;
(h) giving investment or financial advice; or
(i) investing money otherwise than as provided for by Division 2 of Part 3,
and does not include any work that is prescribed by the regulations as not
constituting conveyancing work for the purposes of this Act.
(4) In this section:
“legal work” means work that, if done for fee or reward by a person
who is neither a solicitor nor a barrister, would give rise to an offence under Part 9 of the Legal Profession Act 1987;
“residential property” has the same meaning as it has in Division 8
of Part 4 of the Conveyancing Act 1919, except that it includes land
having an area of up to, but not more than, 10 hectares.
Conveyancers Licensing Act 1992 No. 55
Disqualified persons
5. (1) A person is a disqualified person for the purposes of this Act if
the person:
(a) is a corporation; or
(b) is an undischarged bankrupt; or
(c)
has been convicted in New South Wales or elsewhere of an offence involving dishonesty; or
(d) is a mentally incapacitated person; or
(e) has been removed (otherwise than at his or her own request) from the roll of solicitors or the roll of barristers kept by the Supreme Court or from a corresponding roll of legal practitioners kept by a superior court of another State or Territory; or (f) is disqualified from holding a licence under this Act by virtue of an order in force under section 139; or (g) is disqualified from being employed in a solicitor’s office by virtue of an order in force under section 120 of the Legal Profession Act 1987; or (h) is disqualified from holding a licence or certificate of registration under the Auctioneers and Agents Act 1941 by virtue of an order in force under section 29 or 60 of that Act. (2) A person is also a disqualified person for the purposes of this Act if the person:
(a) is the holder of a barrister’s or a solicitor’s practising certificate under the Legal Profession Act 1987; or (b) is the holder of a licence or certificate of registration under the Auctioneers and Agents Act 1941. PART 2—LICENSING Division l—Preliminary
Effect of licence
Practitioners) of the Legal Profession Act 1987 in respect of 6. (1) A licensee is not guilty of an offence under Part 9 (Unqualified
conveyancing. work that the licensee carries out in accordance with this
Act, the regulations and the conditions of the licence.(2) This section does not permit a licensee to do anything, or to allow anything to be done, that is calculated to imply that the licensee is qualified to act as a solicitor.
Conveyancers Licensing Act 1992 No. 55
Procedure for obtaining a licence
7. (1) A person is qualified to hold a licence if the person is the
holder of a current certificate of eligibility to hold a licence.
(2) A person is qualified to be granted a certificate of eligibility to hold a licence if the person:(a) is of or above the age of 18 years; and
(b)
has such educational qualifications, practical training and conveyancing experience as may be approved by the Committee; and
(c) is not a disqualified person.
(3) Certificates of eligibility are granted by the Committee under Division 2.
(4) Licences are granted by the Council under Division 3.
Licensee to have paid fidelity contribution
A person is not entitled to be granted a licence unless the person
has paid such part of any contribution under Division 2 of Part 4 as is due
and payable on the granting of a licence.
8.
Licensee to be covered by an approved policy of professional indemnity insurance
9.
(1) The regulations may identify particular licensees or classes of professional indemnity insurance. licensees as persons who are required to be insured under a policy of
(2) A person who would, as a result of being granted a licence, become a licensee identified in such a regulation is not entitled to be granted a licence unless an approved policy of professional indemnity insurance will be in force with respect to the person for the whole of the period of the licence.
(3) A policy of professional indemnity insurance is an approved policy
if the insurer and the terms of the policy (including the financial limits of
any cover provided by the policy) are approved by the Committee.(4) The Committee must consult with the Council and the Association before approving an insurance policy for the purposes of this section and must consider any representations made by the Council or the Association as to the form of, and as to the terms to be included in, the policy.
(5) An insurance policy may not be approved for the purposes of this
section unless it indemnifies the insured person against all liabilities
incurred by the person during any period that the person is a licensee,
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including any period during which the licence is of no effect by virtue of section 19 (2) or (3), regardless of when any claim is made in respect of
any such liability.
Division 2—Certificates of eligibility
Applications for certificates of eligibility
(1) An application for a certificate of eligibility to hold a licence may be made to the Committee by any person. 10.
(2) An application must be in the form approved by the Committee and must be accompanied by:
(a) an application fee of an amount prescribed by the regulations; and
(b)
in the case of an initial application—evidence that the applicant has the educational qualifications, practical training and conveyancing experience approved by the Committee.
(3) The application fee is to be paid into the Statutory Interest Account.
Committee may require further particulars
11. The Committee, by notice in writing served on the applicant:
(a)
may require further information to be given in connection with the application; and
(b)
may require the application, or any further information, to be verified by statutory declaration,
within such time as it may specify in the notice.
Determination of applications
(l) After considering an application, the Committee may
(a) to grant a certificate of eligibility to the applicant; or
(b) to refuse the application.
(2) A certificate of eligibility may not be granted to an applicant unless12.
determine:
the Committee is satisfied 'that the applicant:
(a) is of or above the age of 18 years; and
(b)
has such educational qualifications, practical training and conveyancing experience as may be approved by the Committee; and
(c) is not a disqualified person.
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(3) A certificate of eligibility may not, except after consultation with the Council, be granted to an applicant who has been the holder of a licence that has been cancelled (otherwise than at the request of the applicant) since the previous certificate of eligibility was granted.
(4) A certificate of eligibility may not, except after consultation with
the Association, be granted to an applicant who has been the holder of alicence that has been cancelled on a ground referred to in section 20 (1)
(d) , (e) or (f) since the previous certificate of eligibility was granted. (5) For the purpose of determining whether or not a person is a disqualified person by virtue of section 5 (1) (c), the Committee: may determine whether an offence committed by the person was or was not, in the circumstances of the case, an offence involving dishonesty; and
offence was committed or because of the triviality of the acts or may determine to ignore the fact that the person has committed such an offence if (because of the time that has passed since the omissions giving rise to the offence) it considers it appropriate to
do so.Imposition of conditions
13. (1) A certificate of eligibility may specify conditions to which
licence granted to the applicant should be subject.
(2) The conditions so specified may include conditions of the following
kind:
(a)
a condition prohibiting the proposed licensee from carrying out conveyancing work otherwise than as an employee of a licensee whose licence does not contain such a condition;
(b) a condition requiring the proposed licensee to undertake or
complete a specified course of studies within a specified period of
time;
(c)
a condition prohibiting the proposed licensee from carrying out conveyancing work in relation to specified kinds of transaction;
(d)
a condition requiring the proposed licensee to undertake or complete a specified course of further legal education during each year for which he or she remains a licensee.
Notice of Committee’s decision to be given
application (including reasons for the decision, if the decision is to refuse 14. (1) The Committee must cause notice of its decision on an
the application) to be given to the applicant within 14 days after the
decision is made.
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(2) For the purposes only of any appeal proceedings arising in connection with an application under this section, the Committee is taken to have refused the application if it has not finally disposed of the application within 6 weeks after the application was made.
Duration of certificates of eligibility
A certificate of eligibility remains in force until it is withdrawn or until it is replaced by another certificate of eligibility.
15.
Withdrawal of certificates of eligibility
The Committee, by notice in writing served on the holder of a
certificate of eligibility, may withdraw the certificate on any of the
following grounds:
16.
(a)
that the holder of the certificate has ceased to hold a licence for a single period of more than 6 months since the certificate was granted;
(b)
that a licence held by the holder of the certificate has been cancelled otherwise than at the request of the licensee;
(c)
that the holder of the certificate has failed to comply with the conditions of any licence issued by virtue of the certificate;
(d)
that the holder of the certificate is disqualified from holding a licence by virtue of an order in force under section. 139;
(e) that the Tribunal has cancelled the certificate under section 139.
Division 3—Licences
Applications for licences
17.
(1) An application for a licence may be made to the Council by any person who holds a current certificate of eligibility. (2) An application must be in the form approved by the Council and must be accompanied by:
(a) an application fee of an amount prescribed by the regulations; and (b) the applicant's current certificate of eligibility to hold a licence; and
(c)
evidence that the applicant has paid such part of any contribution under Division 2 of Part 4 as is due and payable on the granting of a licence; and
Conveyancers Licensing Act 1992 No. 55
(d) in the case of an applicant who would, as a result of being granted a licence, be required to be covered by an approved policy of professional indemnity insurance—evidence that such a policy will be in force with respect. to the applicant for the whole of the period of the licence; and (e) in the case of an application for the renewal of an expiring licence-the most recent auditor’s certificate in relation to the licensee’s accounts. (3) The application fee is to be paid into the Statutory Interest Account. (4) The Council may require an application to be verified by statutory
declaration.
(5) The applicant’s current certificate of eligibility to hold a licence is to be returned to the applicant as soon as the application has been dealt with.
Determination of applications
18. (1) After considering an application, the Council may determine:
(a) to grant a licence to the applicant; or
(b) to refuse the application.
(2) A licence may not be granted to an applicant unless the Council issatisfied:
(a) that the applicant is not a disqualified person; and
(b)
that the applicant is the holder of a current certificate of eligibility to hold a licence; and
(c) that the applicant has paid such part of any contribution under
Division 2 of Part 4 as is due and payable on the granting of a
licence; and
(d) in the case of an applicant who would, as a result of being granted a licence, be required to be covered by an approved policy of professional indemnity insurance-that such a policy will be in force with respect to the applicant for the whole of the period of the licence.
(3) The Council may refuse an application on any of the grounds (listed in section 20 (1)) on which. it may suspend or cancel a licence. (4) The licence is to be in a form approved by the Council and is to be granted subject to the conditions set out in the current certificate of eligibility.
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(5) For the purposes only of any appeal proceedings arising in connection with an application under this section, the Council is taken to have refused the application if it has not finally disposed of the application within 8 weeks after the application was made.
Duration of licences
such later date as may be specified in the licence, and (unless sooner 19. (1) A licence takes effect on the date on which it is granted, or on
suspended or cancelled) remains in force until the following 30 June or, if an application for a further licence is duly made before the following 30 June, until the date on which the application is finally disposed of.
(2) A licence is of no effect during any period for which any part of a contribution under Division 2 of Part 4 remains due and payable by the licensee.
(3) A licence held by a licensee who is required to be covered by an approved policy of professional indemnity insurance is of no effect during any period for which such a policy is not in force with respect to the licensee.
Suspension and cancellation of licences
following grounds: 20. (1) The Council may suspend or cancel a licence on any of the
(a) that the licensee has requested the suspension or cancellation of the licence; (b) that the licensee has failed to comply with a condition of the licence; (c) that the licensee has failed to comply with an order in force under section 125, 130 or 139; (d) that the licensee has failed to comply with the requirements of Division 2 of Part 3 in relation to trust money or controlled money; (e) that the licensee has failed to pay any part of a contribution due and payable under Division 2 of Part 4;
( f ) in the case of a licensee who is required to be covered by an approved policy of professional indemnity insurance-that
such a
policy is no longer in force with respect to the licensee;
(g) that the licensee has become a disqualified person;
(h)
that the licensee has failed to comply with a requirement under this Act to furnish any record, document or information or if any record, document or information so furnished fails to give a satisfactory explanation of the licensee’s conduct;
Conveyancers Licensing Act 1992 No. 55
that the licensee has been convicted of an offence against this Act; that the licensee is a prisoner within the meaning of the Prisons Act 1952;
that the licensee is (because of illness or infirmity) unfit to carry out conveyancing work and that it is in the public interest that the licence be suspended or cancelled.
A licence may not be suspended or cancelled on a ground referred
subsection (1) (d), (e) or (f) except after consultation with the
Association.
(3) A licence may not be suspended or cancelled (otherwise than on a ground referred to in subsection (1) (a), (c) or (i)) unless:
(a)
the Committee concurs with the proposed suspension or cancellation; or
(b)
the Council is of the opinion that there has been, or that there may have been, a failure to account (within the meaning of Part 5) by the licensee.
(4) Before suspending or cancelling a licence on the ground referred to in subsection (1) (k), the Council:
(a) may hold an inquiry; and
(b) may require the licensee to be examined by a medical practitioner nominated by the Council. (5) An inquiry under this section is to be conducted in accordance with the procedures prescribed by the regulations.
(6) The Council must cause notice of its decision to suspend or cancel a
licence to be given to the licensee, to the Committee and (if the decisionis based on a ground referred to in subsection (1) (d), (e) or (f)) to the Association within 14 days after the decision is made.
(7) The notice must include. the reasons for the decision if the decision. is based on a ground referred to in subsection (1) (b)–(k). (8) A suspension or cancellation of a licence takes effect when notice of the suspension or cancellation is served on the licensee or on such later date as may be specified in the notice.
Division 4—Appeals
Appeals
decisions: 21. (1) An appeal lies to the Supreme Court against the following
(a)
a decision of the Committee refusing to grant' a certificate of eligibility for a licence;
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(b)
a decision of the Committee requiring the imposition of a condition on a licence;
(c) a decision of the Council refusing to grant a licence;
(d) a decision of the Council suspending or cancelling a licence.
(2) Such an appeal must be made within 28 days after the date on which the decision was made or is taken to have been made.
(3) The making of an appeal does not operate to stay the decision appealed against except to the extent (if any) to which the Supreme Court orders.
PART 3—CONVEYANCING PRACTICE
Division 1—General
Effect of contravention of Division 1
Contravention of a provision of this Division does not give rise to an offence (except where the provision specifies a penalty in respect of such a contravention) but may constitute unsatisfactory professional conduct or professional misconduct.
22.
Fees
(or a maxium rate according to which such a fee may be calculated) is 23. (1) If a maximum fee for the carrying out of work by a solicitorfixed by a determination of the Legal Fees and Costs Board, the maximum fee for the carrying out of the same kind of work by a licensee (or the maximum rate according to which such a fee may be calculated) is the same as that fixed by the determination.
(2) Despite any Act or law to the contrary, a licensee is not entitled to
charge or recover, in respect of any work, any amount in excess of themaximum. amount payable, in respect of that work, in accordance with
subsection (1). (3) A licensee must not enter into an agreement that attempts to exclude, modify or restrict the operation of this section.
(4) Any agreement that attempts to exclude, modify or restrict the operation of this section is void to the extent to which it attempts to do so.
(5) Division 5 of Part 11 of the Legal Profession Act 1987 applies to the fees charged by a licensee in the same way as it applies to the fees charged by a solicitor.
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Nature of conveyancing business
(1) A licensee must not conduct a conveyancing business, or be involved in the conduct of a conveyancing business, otherwise than as a sole practitioner, in partnership with other licensees or as an employee of another licensee. 24.
(2) A licensee must not falsely represent, or permit any other person to falsely represent, that another person is a partner of the licensee.
Attendance at business premises
A licensee must not permit conveyancing work to be carried out at any premises at which the licensee conducts a conveyancing business unless the licensee, or some other licensee, gives reasonable attendance at those premises.
25.
Business names
26. business name that is not approved by the Committee.
(1) A licensee must not conduct a conveyancing business under a
(2) The Committee is not to approve a proposed business name for a conveyancing business if the name is so similar to that of another business name under which another conveyancing business is conducted as to suggest that there is a relationship between the two businesses. (3) A licensee must not enter into any arrangement under which some other person, whether or not a licensee, is authorised by the licensee to conduct a conveyancing business under the same business name, or under a substantially similar business name, as that under which the licensee conducts a conveyancing business. Sharing of receipts with unqualified persons business with another person unless: 27. (1) A licensee must not share the receipts of a conveyancing
(a) the other person is a licensee; or
(b) the sharing of those receipts with that other person is approved by the Committee. (2) An approval may not be given under this section unless the Committee is satisfied that the sharing of the receipts of the conveyancing business in accordance with the approval:
(a)
will not result in a person other than a licensee gaining control of the. business; and
Conveyancers Licensing Act 1992 No. 55
(b) will not adversely affect the independent conduct of the licensee’s business or give rise to a conflict between the interests of the licensee and the interests of any of the licensee’s clients. (3) This section does not prevent a party to a transaction from recovering from any other person the costs of conveyancing work carried out. by a licensee who is employed by the party under a contract of service.
Employment of disqualified persons
28.
(l) A licensee must not, in connection with his or her to be a disqualified person. conveyancing business, employ or pay a person whom the licensee knows
employed or paid in accordance with leave given by the Committee or by (2) Subsection (1) does not apply in relation to a person who is the Supreme Court. (3) If the Committee refuses an application by a person for leave under this section, the person may appeal against the decision to the Supreme Court which may either confirm the decision appealed against or else give leave for the appellant to be employed or paid in connection with the conveyancing business.
(4) Leave given under this section may be limited as to time or given subject to specified conditions.
(5) A disqualified person must not seek employment or payment in connection with a licensee’s conveyancing business unless he or she has informed the licensee of the fact of his or her disqualification.
Maximum penalty (subsection (5)): 10 penalty units.
Sharing staff of legal practitioners and real estate agents etc.
29. A licensee must not employ any person in the conduct of a conveyancing business if the person, while so employed, is employed also:
(a)
by the holder of a barrister’s or solicitor’s practising certificate under the Legal Profession Act 1987; or
(b)
by the the holder of a licence or certificate of registration under the Auctioneers and Agents Act 1941.
Advertising
(1) The regulations may make provision with respect to
advertising in connection with the carrying out of conveyancing work and
the conduct of a conveyancing business.30.
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(2) In particular, the regulations may make provision with respect to the manner in which a licensee may advertise, the subject-matter of advertisements and the manner in which a licensee must represent himself' or herself in correspondence arising in the conduct of a conveyancing business.
(3) A licensee must not advertise otherwise than in accordance with the regulations under this section.
Conduct of other .businesses
(l) The regulations may prohibit a licensee who conducts a conveyancing business, or who is employed in the conduct of a conveyancing business, from conducting, or being employed in the conduct of, any other business or class of businesses. 31.
(2) A licensee must not conduct any business, or be employed in the conduct of any business, in contravention of the regulations under this section.
Committee may establish guidelines for conduct of conveyancing business
(1) The Committee may, by order published in the Gazette,
establish guidelines as to the manner in which conveyancing businesses
should be conducted.32.
(2) The guidelines may adopt, with or without modification, the provisions of any rules made by the Law Society with respect to the conduct of solicitors.
(3) A licensee must not conduct a conveyancing business in contravention of any guidelines in force under this section.
Division 2—Trust money and controlled money
Money received by licensee on behalf of another
33.
(l) A licensee who, in the course of conducting a conveyancing business, receives money on behalf of another person:
(a)
must pay the money, within the time prescribed by the regulations, into a general trust account at a bank in New South Wales and must hold the money in accordance with the regulations relating to trust money; or
Conveyancers Licensing Act 1992 No. 55
(b) if the person on whose behalf the money is received directs that it be paid otherwise than into a general trust account, must pay the money as directed and (if the money is to be held under the direct or indirect control of the licensee for more than the period prescribed by the regulations) must hold the money in accordance with the regulations relating to controlled money. (2) In either case, the licensee must hold the money exclusively for, and must disburse the money in accordance with the directions of, the person on whose behalf it is held.
(3) This section:
(a)
does not prevent a licensee from depositing money with the Law Society in accordance with section 36, but continues to apply to any money so deposited that is repaid to the licensee; and
(b)
does not prevent a licensee from withdrawing or receiving, from trust money or controlled money:
• reimbursement for disbursements paid by the licensee; or
• money for disbursements to be paid by the licensee; orl money due, or to accrue due, to the licensee for costs,
so long as the procedure prescribed by the regulations is followed;
and
(c)
does not affect any enforceable lien or claim that a licensee has to any money; and
(d)
does not prevent a licensee from exercising a general retaining lien for unpaid costs and disbursements in respect of money in a trust account or a controlled money account (other than money received subject to an express direction by the client with respect to the purposes for which the money is to be applied).
(4) A lien referred to in subsection (3) (d):
(a) may not be exercised for an amount in excess of the sum of thecosts and disbursements unpaid; and
(b)
may not be exercised unless the licensee has delivered an outline bill of costs and disbursements to the client on whose behalf the money is held.
(5) Money received by a licensee on behalf of another person:
(a) is not available for payment to a creditor of the licensee; and
(b)
is not liable to be 'taken in execution of any judgment, order or other process of any court or tribunal at the instance of a creditor of the licensee,
unless the creditor is the person on whose behalf the money is held by the
licensee.Conveyancers Licensing Act 1992 No. 55
(6) If a trust account kept by a licensee is, as authorised by or under the regulations, operated on by a person other than the licensee, section 53 of the Trustee Act 1925 does not apply to the person in relation to the operation on the trust account.
(7) It is professional misconduct for a licensee to contravene this section.
Keeping of accounts
34.
(1) A licensee must keep accounting records that disclose at all times the true position in relation to money received by the licensee on
behalf of another person.
(2) The accounting records must be kept in a manner that enables them to be conveniently and properly audited and, if the regulations so require, must be kept in such manner as the regulations prescribe.(3) It is professional misconduct for a licensee to contravene this section.
Audits
(1) The regulations may make provision with respect to:
the auditing of a licensee’s records; and the reports to be made by auditors; and the submission of auditors’ reports to the Council and to the.
Association.
An auditor may require a licensee to do any of the following:
to produce for the auditor’s inspection any accounting or other
records relating to the licensee’s conveyancing business;
to give the auditor such other information as is reasonably
necessary for the purposes of the audit;
to funish the auditor with such authorities or orders on bankers andothers as relate to the licensee’s conveyancing business.
A person of whom such a requirement is made: must not fail to comply with the requirement; and
must not, in purported compliance with the requirement, provide
information that the person knows to be false or misleading in a
material particular.Maximum penalty: 10 penalty units.
Conveyancers Licensing Act 1992 No. 55
(4) If a record:
(a) is not in writing; or
(b) is not written in English; or
(c) is not decipherable on sight,a requirement to produce the record is not complied with unless access is provided to a statement, written in English and decipherable on sight, that contains all the information in the record.
(5) It is professional misconduct for a licensee to contravene this section.
(6) A person who complies with a requirement under this section is not subject, merely because of that compliance, to any liability, claim or demand.
Deposit of trust funds with Law Society the licensee must cause to be deposited with the Law Society, and to be 36. (1) Out of the money that is paid into a licensee's trust account, kept deposited with the Law Society, an amount calculated as prescribed
by the regulations.(2) This section applies to each member of a firm of licensees, and to money paid into a trust account kept by such a firm, in the same way as it applies to a licensee and to money paid into a trust account kept by a licensee. (3) This section does not apply to a separate trust account kept on the instructions of a client for 'the exclusive use of the client. (4) This section does not affect any enforceable lien or claim that a licensee has to any money. (5) It is professional misconduct for a licensee to contravene this section. Money not claimed from licensee person on whose behalf the money is held or any other person authorised (1) If a licensee holding money in a trust account cannot find the to receive the money, the licensee: 37.
may pay the money to the Treasurer for payment into the
Consolidated Fund; and
I must in that event, provide the Treasurer with such information as
whose behalf the money was held. the Treasurer requires in relation to the money and the person on Conveyancers Licensing Act 1992 No. 55
(2) If a licensee pays money to the Treasurer under this section, the
licensee is relieved from any further liability in relation to the money.(3) The Treasurer may pay money deposited under this section to any person who satisfies the Treasurer as to his or her entitlement to the money.
(4) Payment of money to such a person discharges the Crown and the Treasurer from any liability' in relation to the money, but does not discharge the person from any liability to any other person who establishes an entitlement to the money.
(5) The Treasurer may require a person to provide any information that. the person has, or can reasonably obtain, about the entitlement of any other person to money paid to the Treasurer under this section and about any attempts that have been made to locate that other person.
(6) A person of whom such a requirement is made:
(a) must not fail to comply with the requirement; and
(b)
must not, in purported compliance with the requirement, provide information that the person knows to be false or misleading in a material particular.
Maximum penalty (subsection (6)): 5 penalty units.'
Relief for bankers
38.
(1) A bank, in relation to a transaction on an account kept by a licensee at that or any other bank:
(a) does not incur any obligation to make inquiries, or any other obligation or liability, other than an obligation or liability to which it would be subject apart from this Act; and (b) does not have imputed to it any knowledge of the entitlement of a person to money credited to the account, that it would not incur, or have imputed to it, if the account were kept by the bank for a person absolutely entitled to the money held in the account.
(2) A bank at which a licensee keeps an account for clients' money has no recourse (whether by way of set-off, counter-claim, charge or otherwise) against money held in the account in respect of any liability of the licensee to the bank other than a liability in respect of the account.
Conveyancers Licensing Act 1992 No. 55
Division 3—Inspection of trust accounts and investigations
generally
Appointment of trust account inspectors etc. 39. (1) The Council:
(a) may appoint trust account inspectors to inspect, either generally or in a particular case, the accounts kept by licensees under Division
2; and
(b)
may, after consultation with the Association, appoint an investigator to investigate the affairs of a particular licensee.
(2) A trust account inspector may exercise the functions of an
investigator in the course of .any inspection of accounts carried out by the
inspector.(3) A trust account inspector or an investigator may appoint an assistant to assist in the conduct of inspections or investigations.
(4) Trust account inspectors and investigators are referred to in this Division as inspectors.
Production of records
(1) An inspector may require a licensee, or any other person who
has possession or control of any records of a licensee or relating to the
affairs of a licensee, to do any of the following:40.
to produce for the inspector’s inspection such of those records as relate to the accounts being inspected or the affairs being investigated;
to give the inspector such other information as the licensee or other must not fail to comply with the requirement; and
person is able to give in relation to those accounts or affairs;
to furnish the inspector with such authorities or orders on bankers
and others as relate to those accounts or affairs.
must not, in purported compliance with the requirement, provide information that the person knows to be false or misleading in a material particular. Maximum penalty: 10 penalty units.
(3) If a record:
(a) is not in writing; or
(b) is not written in English; or
(c) is not decipherable on sight,Conveyancers Licensing Act I992 No. 55
a requirement to provide access to the record is not complied with unless access is provided to a statement, written in English and decipherable on
sight, that contains all the information in the record. (4) A person who complies with a requirement under this section is not subject, merely because of that compliance, to any liability, claim or demand.
Inspectors’ reports
41. An inspector:
(a)
must send a copy of his or her report to the licensee (at the address of the licensee last known to the Council) and further copies to the Association and the Council; and
(b)
must provide the Minister with a copy of the report if the report indicates that there are reasonable grounds for suspecting professional misconduct, unsatisfactory professional conduct or irregularity in relation to the affairs of the licensee.
Costs of inspection and investigation
(1) The amount of the costs of an inspection or investigation, as
under inspection or investigation:
(a) if the inspector states in his or her report that there is evidence that42.
certified by the Council, is a debt due to the Law Society by the licensee
the licensee is guilty of professional misconduct or unsatisfactory professional conduct in relation to the affairs investigated or is guilty of an offence against this Act or the regulations; and
(b)
if the Council is of the opinion that the conduct or breach was wilful or of a substantial nature.
(2) The Council may waive payment of costs under this section.
(3) If the inspection or investigation concerned relates to the accountsor affairs of a firm of licensees, the Council may determine the proportion or amount (if any) of the debt due to the Law Society payable by each- licensee involved.
Secrecy
(1) It is an offence for an inspector, unless making a requirement unauthorised disclosure: 43.
under this Division, or for an inspector’s assistant, to make an
(a) of the appointment of the inspector or assistant; or
(b)
of any matter that comes to his or her notice in the course of the inspection or investigation; or
Conveyancers Licensing Act 1992 No. 55
(c) of anything in the inspector’s report.
Maximum penalty: 10 penalty units.
(2) Subsection (1) is not contravened: (a) if an inspector discloses anything to his or her assistant; or (b) if an inspector’s assistant discloses anything to the inspector. (3) A member of the Council, or a solicitor, officer or agent of the Law
Society, must not make an unauthorised disclosure:
(a) of the appointment of an inspector or of an inspector’s assistant; or
(b) of anything in an inspector’s report.Maximum penalty: 10 penalty units.
if an inspector states in his or her report that there is evidence of
professional misconduct, unsatisfactory professional conduct or
irregularity in relation to the affairs inspected or investigated; and
if a member of the Council, or a solicitor, officer or agent of the
Law Society, discloses information in the report to a person to
whom the Council decides that the information should be disclosed.
A disclosure is an unauthorised disclosure if it is made to a person
than.:
the Minister; or
a member of the Committee, the Association or the Council; or
any insurer of the Association; or
a solicitor, agent or officer of the Committee, the Law Society, theSubsection (3) is not contravened: the Supreme Court; or
the Panel, the Board or the Tribunal; or a police officer; or
a person to whom a copy of the report is required by this Act to be
sent.
Obstruction of inspectors etc.
A person must not hinder, obstruct or delay an inspector in the exercise of his or her functions.
44.
Maximum penalty: 10 penalty units.
Conveyancers Licensing Act 1992 No. 55
PART 4—CLAIMS ARISING FROM FAILURES TO
ACCOUNT
Division l—Preliminary
Definitions
45. In this Part:
“associate” has the same meaning as it has in Part 5;
“failure to account” has the meaning given to it by section 46;
“pecuniary loss” includes:
(a) the costs of a claimant that are due to a failure to account; and
(b) the costs involved in making a claim; and
(c)
interest that, but for a failure to account, would have been received by a claimant, calculated to the date on which the claim succeeds, being interest at a rate up to, but not exceeding, the rate prescribed by the Supreme Court Rules in respect of unpaid judgments as at that date.
Failure to account
licensee to account for, pay or deliver money or other valuable property: 46. (1) In this Part, “failure to account” means a failure by a
(a)
that has been received by or entrusted to the licensee, or an associate of the licensee, in the course of the licensee’s conveyancing business; and
(b)
that is, in the case of money or other valuable property received’ by or entrusted to an associate of the licensee, under the direct or indirect control ‘of the licensee,
being a failure that arises from an act or omission of the licensee or
associate:
(c)
for which the licensee or associate has been convicted of an offence involving dishonesty; or
(d) which the Association has found to be dishonest.
(2) The reference in the definition of “failure to account” in subsection(l) to money or other valuable property received by or entrusted to a licensee includes a reference to money or other valuable property that is received by or entrusted to the licensee as trustee, agent, bailee or stakeholder, or in any other capacity.
(3) A finding by the Association that an act or omission is, or is not, dishonest is conclusive for the purposes of subsection (1).
Conveyancers Licensing Act I992 No. 55
Division 2—Fidelity insurance
Association to take out fidelity insurance
(1) The Association must ensure that an approved policy of (2) A policy of fidelity insurance is an approved policy if the insurer and the terms of the policy (including the financial limits of any cover provided by the policy) are approved by the Committee. 47. fidelity insurance is in force at all times in relation to all licensees.
(3) The Committee must consult with the Council and the Association before approving an insurance policy for the purposes of this section and must consider any representations made by the Council or the Association as to the form of, and as to the 'terms to be included in, the policy.
(4) An insurance policy may not be approved for the purposes of this section unless it is in the form of a master policy of fidelity insurance, being a policy that is held by the Association and that indemnifies the Association against all liabilities incurred by the Association under Division 3, regardless of when any claim is made in respect of any such liability.
Contributions by licensees
(1) A licensee is liable to pay a contribution to the .Association with respect to the approved policy of fidelity insurance held by the Association in respect of any year during which the licensee holds a licence. 48.
(2) The appropriate contribution is the amount determined from time to
time by the Association, with the approval of the Committee, in relation
to the licensee or to the class of licensees to which the licensee belongs.(3) The appropriate contribution for a licence that is to take effect on or after 1 January in any year is half the contribution that would otherwise be payable.
(4) The Association may determine different contributions for different
licensees or for different classes of licensees and may determine themanner in which, and the time or times at which, a contribution, or an
instalment of .a contribution, is to be paid. (5) The Association is to notify the Committee in the event that any part of a contribution remains due and unpaid.
Conveyancers Licensing Act 1992 No. 55
Division 3—Claims against the Association in respect of failures
to account
Claims -against the Association
49. (l) Any person who suffers pecuniary loss as a result of a failure
to account by a licensee is entitled to be compensated for the loss by the
Association.
(2) The Association must notify the Council and the Committee of any claim made against it under this section.(3) A person is not prevented from making a claim merely because, after the act or omission from which a failure to account arises, a licensee:
(a) dies; or
(b) ceases to conduct a conveyancing business; or
(c) ceases to hold a licence.
(4) If a licensee authorises a person to operate on an account for clients’ money kept by the licensee at a bank, an act or omission by the person in relation to those operations is, for the purposes of this Division, an act or omission of an agent of the licensee.
(5) A claim must be made:
(a)
within 3 months after the claimant becomes aware of the failure to account; or
(b) within such further time as the Association allows; or
(c) if the Association refuses to allow further time-within further time as the Supreme Court allows.
such
Reimbursement of licensees and others
. (1) If, in respect of a failure to account by a licensee’s associate: all claims (other than claims under this section) have been met; and the licensee has paid compensation for a pecuniary loss due to the failure to account; and
the licensee has, in the opinion of the Association, at all times acted
honestly and reasonably in relation to the failure to account,
the licensee may make a claim as if the compensation paid by the licensee
were a pecuniary loss suffered as a result of the failure to account.
(2) A reference in this section to a licensee includes a reference to:
(a) a former licensee; and
Conveyancers Licensing Act 1992 No. 55
(b)
in relation to the payment of compensation and the making of a claim—the personal representative of a deceased licensee or a deceased former licensee.
Final date for making claims
may have been a failure to account, it may publish: 51. (1) If the Association has reason to believe that there has been or
(a)
in a newspaper published and circulating in the district in which the licensee is, or was, carrying on business; and
(b) in a newspaper published and circulating in Sydney,. a notice that fixes a date on or before which claims relating to the failure
must be made.(2) The date fixed by the notice must be a date that is not earlier than 3 months after its first or only publication and a claim made after that date is barred unless:
(a) further time is allowed by the Association; or
(b)
if the Association refuses to allow further time, further time is allowed by the Supreme Court.
(3) The publication in a newspaper in good faith of a notice under this
section does not subject: (a) the Association; or (b) a member, employee or agent of the Association; or
(c) the proprietor, editor or publisher of the newspaper,
to a liability to any person.
(4) The Association may, after such date as it may fix in each case, pay successful claims.
Claims must be pursued
(1) The Association may give a claimant not less than 2 1 days’
(a) to take such steps for the purpose of pursuing the claim; or
(b) to supply such particulars in connection with the claim; or52.
written notice requiring the claimant:
(c)
to produce or deliver to it any securities or documents necessary or available to support the claim or to enable it to establish any rights of the Association against a licensee or an associate of the licensee; or
(d) to do such things in connection with the claim,
as are specified in the notice.
Conveyancers Licensing Act 1992 No. 55
(2) If the claimant fails to comply with the notice, the Association:
(a) may wholly or partly disallow the claim; or
(b)
may direct that the whole, or a specified part, of any interest otherwise payable be not paid.
Determination of claims
53. (1) After considering a claim, the Association may determine the
claim: (a) by allowing the claim, either wholly or in part; or
(b) by disallowing the claim.
(2) A claim is not to be allowed, either wholly or in part, unless the Association is satisfied that there has been a failure to account by the licensee to whom the claim relates and that the claimant has suffered pecuniary loss as a result of that failure.
(3) If a claim is allowed in part only, there is to be paid to the claimant by the Association, in respect of costs incurred by the claimant as a result of the failure to account, an amount assessed:(a) by agreement between the claimant and the Association; or
(b) in default of agreement-as if taxed on a reference for taxation
under Division 5 of Part 11 of the Legal Profession Act 1987.
(4) If a claim is disallowed but the Association determines that a
specified amount should be paid in respect of costs incurred by theclaimant as a result of the failure to account, that amount is to be paid to
the claimant by the Association.
(5) The Association must cause notice to be given to the Council of any determination under this section within 7 days after the determination is. made.
(6) Even if a successful claim does not include a claim for interest, there is payable to the claimant by the Association interest at the rate prescribed by the regulations on:
(a) the amount allowed by the Association; or
(b) the amount of 'the judgment recovered against the Association,
from the date on which the claim was made until the date on which it
succeeded.
Avoidance of double compensation
54. (1) If, in respect of a claim, a claimant:
(a) receives a payment from the Association; and
Conveyancers Licensing Act 1992 No. 55
(b) receives or recovers from another source a payment on account of the pecuniary loss, the claimant is liable to pay to the Association the amount of surplus (if any) after deducting from the total amount received or recovered by the claimant the amount of the pecuniary loss.
(2) If, in respect of a claim, a claimant:
(a)
receives or recovers from a source other than the Association a payment on account of the pecuniary loss; and
(b) recovers judgment against the Association,
the amount of any such judgment against the Association is reduced by the amount of surplus (if any) after deducting from the total amount received or recovered (including the amount of the judgment) by the claimant the amount of the pecuniary loss.
(3) Any amount payable to the Association under subsection (1) is a debt due to the Association by the licensee.
Ceiling on payments by the Association Association in respect of all failures to account by the same licensee or 55. (1) The maximum aggregate amount that is ‘payable by the
firm of licensees is such amount as the Association may, after
consultation with the Committee, determine.(2) The Association may make a payment that, but for this subsection, could not be made because of the limit imposed by subsection (1) if it is
satisfied, after taking into account all of its ascertained and contingent liabilities, that it would be reasonable to do so. Proceedings against the Association 56.
(l) An action does not lie against the Association in respect of its (2) If the Association wholly or partly disallows a claim relating to a failure to account in respect of which a licensee or associate has been convicted of an offence involving dishonesty: determination of a claim otherwise than as provided by this section.
(a)
the claimant may take proceedings in the Supreme Court as for a debt due by the Association; and
(b) in any such proceedings, the defences that would have been
available to the licensee are available to the Association. (3) If the Association wholly or partly disallows a claim, it must, without delay, give written notice of the disallowance to the claimant or the claimant’s solicitor.
Conveyancers Licensing Act 1992 No. 55
(4) A claimant whose claim is wholly or partly disallowed, or whose claim is not determined by the Association within the time prescribed by the regulations, may appeal to the Supreme Court against the disallowance of or the failure to determine the claim.
(5) On an appeal under this section, the Supreme Court may make such order as it thinks fit.
(6) A claimant may take proceedings under either subsection (2) or subsection (4).
Association subrogated to rights etc. of claimants
subrogated to all the rights and remedies of the claimant against: (a) the licensee or associate in respect of whom the claim was made; or
57. (1) On payment being made under a claim, the Association is
(b)
the person authorised to administer the estate of any such licensee who is deceased or bankrupt; or
(c) any other person, in relation to the failure to account.
(2) This section does not extend to a right or remedy against a licensee who is a partner of a claimant and who, in the opinion of the Association, acted honestly and reasonably in relation to the failure to account.
(3) The Association may exercise its rights or remedies under this section in its own name or the name of the claimant.
(4) If the Association brings proceedings under this section in the name of a claimant, the Association indemnifies the claimant against any costs awarded against the claimant in the proceedings.
Insufficiency of the assets of the Association
58. (1) If the assets of the Association are at any time insufficient to
meet the liabilities to which the Association is subject under this
Division:
(a) the Association may determine the manner of division among the successful claimants, or any of them to the exclusion of the others, of the money for the time being available; and (b) the judgments and claims are, subject to any limitations imposed by this Act, to be finally satisfied from future assets of the Association. (2) Proceedings based on, or for the enforcement of, a judgment against the Association in respect of a claim may not be taken without the leave of the Supreme Court.
Conveyancers Licensing Act 1992 No. 55
PART 5—MANAGEMENT AND RECEIVERSHIP
Division l—Preliminary
Definitions
59. In this Part:
in relation to a licensee, has the meaning given to it by
section 60;
“expenses”, in relation to management or receivership, means:
(a) the remuneration payable to the manager or receiver; or
(b)
the expenses incurred in the course of the management or receivership; or
(c)
the costs of legal proceedings involved in the management or receivership; or
(d)
any reimbursement of the manager or receiver under section 67 or 92;
“failure to account” has the meaning given to it by section 61 ; licensee’’ includes:
(a) a firm of licensees; and
(b) a former licensee; and
(c) in relation to anything done or omitted by a licensee-a deceased licensee and a deceased former licensee; and (d) except in relation to anything done or omitted by a
licensee-the personal representative of a deceased licensee or a deceased former licensee;
“property”, in relation to a licensee, means:
(a)
money or other property received by the licensee on behalf of another person in the conduct of a conveyancing business; or
(b)
interest, dividends, income, profits or other property derived from or acquired with money or other property referred to in paragraph (a); or
(c)
documents and records of any description relating to anything referred to in paragraph (a) or (b) or to the licensee’s conveyancing business; or
(d)
any means by which any records referred to in paragraph (c) that are not written may be reproduced in writing,
and, in relation to a licensee whose conveyancing business is under
management, includes any property of the business;Conveyancers Licensing Act 1992 No. 55
“receivable property” means property of a licensee or an associate of a licensee that is the subject of an order appointing a receiver, and includes property that, but for its having being taken, paid or transferred unlawfully or in breach of trust, would be receivable property;
“receiver” means a receiver appointed by the Supreme Court under section 74;
“relevant associate” means a licensee’s associate of whose property a receiver has. been appointed under section 75;
‘“relevant licensee” means a licensee of whose property a receiver has been appointed.
Associate
(1) In this Part, a reference to a licensee’s associate is a reference
a partner of the licensee; or
an employee or agent of the licensee; or
a corporation, or a member of a corporation, partnership, syndicate or joint venture, in which the licensee or a person referred to in paragraph (a), (b) or (d) has a beneficial interest; or
a person who bears a prescribed relationship to the licensee or to a
person referred to in paragraphs (a)–(c); or
a corporation that (if a person referred to in paragraphs (b)–(d) is a
corporation) is a subsidiary of the person within the meaning of the
Corporations Law; or
a person declared by the regulations to be an associate of thelicensee or belonging to a class of persons so declared.
For the purposes of subsection (1) (d), a person bears a prescribed relationship to a licensee or other person if the relationship is that of: (a) a spouse; or
(b)
a de facto partner within the meaning of the De Facto Relationships Act 1984; or
(c)
a child, grandchild, sibling, parent or grandparent, whether derived through paragraph (a) or (b) or otherwise; or
(d) a kind prescribed by the regulations for the purposes of this section.
Failure to account
61. (1) In this Part, “failure to account” means a failure by a
licensee to account for, pay or deliver money or other valuable property:
Conveyancers Licensing Act 1992 No. 55
that has been received by or entrusted to the licensee, or an associate of the .licensee, in the course of the licensee’s conveyancing business; and
that is, in the case of money or other valuable property received by or entrusted to an associate of the licensee, under the direct or indirect control of the licensee,
a failure that arises from an act or omission of the licensee or
associate: (c) for which the licensee or associate has been convicted, or is likely to be convicted, of an offence involving dishonesty; or (d) which the Council has found, or is likely to find, to be dishonest. (2) The reference in the definition of “failure to account” in subsection
licensee includes a reference to money or other valuable property that is (1) to money or other valuable property received by or entrusted to a
received by or entrusted to the licensee as trustee, agent, bailee or
stakeholder, or in any other capacity.
(3) A finding by the Council that an act or omission is, or is not, dishonest is conclusive for the purposes of subsection (1).
Division 2—Management
Appointment of manager
(1) The Council may appoint a manager for a licensee’s conveyancing business if: 62.
the licensee has made a request to the Council for the appointment
of a manager; or
the Council has suspended or cancelled the licensee’s licence under
section 20; or
the Council is of the opinion (whether as a consequence of a
determination by the Association under Part 4 or otherwise) that
there has been, or that there may have been, a failure to account bythe licensee; or
payment or delivery of property held by the licensee because the the Council is of the opinion that a person is unable to obtain licensee: • is mentally or physically infirm; or
• is bankrupt, has applied to take the benefit of any law for therelief of bankrupt or insolvent debtors, has compounded with his or her creditors or has made an assignment of his or her remuneration for their benefit; or
Conveyancers Licensing Act I992 No. 55
• is a prisoner within the meaning of the Prisons Act 1952; or
• has died; or
• has abandoned his or her conveyancing business,
and if the Council is of the opinion that it is necessary to make the
appointment in order to protect the interests of other persons.
(2) In the case of a conveyancing business that is conducted by 2 or more licensees in partnership, a reference in subsection (1) to a licensee is
to be read as a reference to all of the licensees in the partnership.
remuneration to which the manager is to be entitled in connection with (3) The terms of appointment of a manager must specify the
the management of the conveyancing business for which the manager is
appointed.(4) The Council must cause notice to be given to the Committee and the Association of any appointment under this section within 7 days after the appointment is made.
Qualifications for appointment as manager
63. A person is not eligible to be appointed as the manager of a licensee’s conveyancing business unless the person is a licensee or a solicitor who holds an unrestricted practising certificate.
Powers of manager
64. (1) The manager of a licensee’s conveyancing business may,
subject to subsection (2) and to the terms of his or her appointment:
(a)
carry out conveyancing work on behalf of the existing clients of the business; and
(b)
accept instructions from, and carry out conveyancing work on behalf of, new clients; and
(c)
dispose of, and otherwise deal with, any property in relation to the business; and
(d)
exercise any right in the nature of a lien over property held by the manager on behalf of the clients of the business; and
(e)
incur such expenses as are reasonably related to the conduct of the business; and
(f) do all such things as are ancillary to the exercise of the powers
referred to in paragraphs (a)–(e),
as if he or she were the licensee to whom the business belongs.
Conveyancers Licensing Act 1992 No. 55
(2) The manager of a licensee’s conveyancing business may not exercise any of the functions conferred by this section in relation to the affairs of a client of the business unless the client’s consent has been obtained to the manager’s exercise of those functions.
Management continues under receivership
(1) The manager of a licensee’s conveyancing business may continue to exercise his or her functions under this Division even if a receiver is appointed under Division 3 in respect of the licensee’s property. 65.
(2) The manager of a licensee’s conveyancing business €or which a receiver is appointed must comply with any lawful direction given by the receiver in connection with the conduct of the business.
Acts of manager to be taken as acts of licensee
66. (1) An act done by the manager of a licensee’s conveyancing business is, for the purposes of any proceedings or transaction that relies
on that act, taken to have been done by the licensee.
(2) Nothing in this section subjects a licensee to any ‘personal liability in relation to any act done by the manager of the licensee’s conveyancing business.
Manager may be reimbursed for damages
(1) The Law Society may reimburse a manager for any damages and costs recovered against the manager, or an employee or agent of the manager, for an act or omission done or omitted in good faith and in the purported exercise of a function under this Act. 67.
(2) Reimbursement under this section is to be by way of payment from the Statutory Interest Account.
(3) Neither the manager of a licensee’s conveyancing business nor the Law Society is liable for any loss incurred by the licensee as a consequence of any act or omission of the manager or the Council in the conduct of the business if the act or omission was done or omitted in good faith and in the purported exercise of a function under this Act.
Payment of expenses of management (1) So much of the expenses of the management of a licensee’s out of the receipts of the business are to be paid to the manager by the 68.
conveyancing business as have not otherwise been paid to the manager
Law Society from the Statutory Interest Account.
Conveyancers Licensing Act 1992 No. 55
(2) An amount paid under this section is recoverable by the Law Society as a debt owed by the relevant licensee.
Manager to report to Council and Association
69. (1) The manager of a licensee's conveyancing business must:
(a) at such times as are fixed by the Council; and
(b) in. accordance with any directions given by the Council,report to the Council and to the Association on the management of the
business.(2) A report is to include' such information as the Council directs. (3) On the conclusion of the management of a licensee's conveyancing business, the manager must, when giving the Council his or her final report, lodge with the Council all the manager ‘s records' that relate to the management.
Trust money
70.
(1) Division 2 of Part 3 applies to the accounts kept by a manager (2) The trust accounts and controlled money accounts of a conveyancing business under management are to be maintained separately from the trust accounts and controlled money accounts of any other conveyancing business under management. in the same way as it applies to the accounts kept by a licensee.
Office accounts
. The regulations may make provision with respect to:
the accounts that are to be kept in relation to the income accrued, and the expenses incurred, by the manager of a licensee's conveyancing business in connection with the conduct of the business; and
expended. the purposes for which money in any such account may be Termination of management
72. When a licensee's conveyancing business ceases to be under management, any money held by the manager in connection with the business (after reimbursement of any money paid out of the Statutory Interest Account in connection with the management of the business and after payment of the expenses of the management of the business) becomes the property of the licensee.
Conveyancers Licensing Act 1992 No. 55
Obstruction of managers
73. A person must not hinder, obstruct or delay a manager in the exercise of his or her functions under this Division.
Maximum penalty: 50 penalty units.
Division 3—Receivership
Supreme Court may appoint receiver
Society,, appoint a receiver of all or any of the property of a licensee and 74. (1) The Supreme Court may, on the application of the Law
may make the appointment whether or not the licensee has been notified
of the application or is a party to the proceedings.
(2) Such an application may be made by the Law Society only if:
(a)
the licensee has made a request to the Council for the appointment of a receiver; or
(b)
the Council has suspended or cancelled the licensee’s licence under section 20; or
(c)
the Council is of the opinion (whether as a consequence of a determination by the Association under Part 4 or otherwise) that there has been, or that there may have been, a failure to account by the licensee; or
(d)
the Council is of the opinion that a person is unable to obtain payment or delivery of property held by the licensee because the licensee:
is mentally or physically infirm; or
is bankrupt, has applied to take the benefit of any law for the
relief of bankrupt or insolvent debtors, has compounded with
his or her creditors or has made an assignment of his or her
remuneration for their benefit; oris a prisoner within the meaning of the Prisons Act 1952; or
• has died; or
• has abandoned his or her conveyancing business,
and if the Council is of the opinion that it is necessary for the application
to be made in order to protect the interests of other persons,.(3) The Council must cause notice to be given to the Committee and the Association of any application under this section within 7 days after the application is made.
Conveyancers Licensing Act 1992 No. 55
(4) Nothing in this Division prevents a manager of a licensee’s conveyancing business from being appointed as a receiver of the licensee’s property.
Receivership may .extend to property of licensee’s associate If, on the application of a receiver, the Supreme Court is satisfied that all or any of the property of a licensee’s associate should be declared to be receivable property, the Court may appoint the receiver to be the receiver of all or any of that property.
75.
Court to be closed
(a)
determining the educational qualifications, practical training and conveyancing experience that are suitable to qualify a person for a licence; and
Conveyancers Licensing Act 1992 No. 55
(b)
accrediting courses of study leading to such educational qualifications,
the Committee is to establish an education subcommittee.
(2) The education subcommittee is to consist of 6 members, of whom:
(a) 1 is to be the Chairperson of the Committee; and (b) 3 are to comprise 1 each of the members referred to in section
(1) (a), (b) and (c) appointed by the Chairperson of the Committee; and
(c) 1 is to be the Dean of the Faculty of Law at the University of Technology, Sydney; and (d) 1 is to be a person appointed by the Minister for Conservation and Land Management. (3) The Chairperson of the Committee is to be the chairperson of the education subcommittee.
(4) Schedule 1 has effect with respect to the education. subcommittee as if references in that Schedule to the Committee were references to the subcommittee.
(5) The functions of the education subcommittee are:
(a)
to investigate such matters in relation to the determination of educational qualifications and the accreditation of courses of study leading to such educational qualifications as are referred 'to it by the Committee; and
(b) to report to the Committee on the results of its investigations.
Insurance subcommittee
(1) For the purpose of exercising its functions in relation to Committee is to establish an insurance subcommittee. 150.
approving policies of professional indemnity and fidelity insurance, the
(2) The insurance subcommittee is to consist of 6 members, of whom:
(a) 1 is to be the Chairperson of the Committee; and
(b) 3 are to comprise 1 each of the members referred to in section 147
(1) (a), (b) and (c) appointed by the Chairperson of the Committee; and
(c)
1 is to be a person appointed by the Insurance Council of Australia; and
(d) 1 is to be a person appointed by the Minister.
Conveyancers Licensing Act 1992 No. 55
(3) The Chairperson of the Committee is to be the chairperson of the insurance subcommittee.
(4) Schedule 1 has effect with respect to the insurance subcommittee as if references in that Schedule to the Committee were references to the subcommittee.
(5) The functions of the insurance subcommittee are:
(a)
to investigate such matters in relation to the approval of policies of professional indemnity and fidelity insurance as are referred to it by the Committee; and
(b) to report to the Committee on the results of its investigations. Advisory subcommittees
151. ( l ) The Committee may appoint such other subcommittees as it considers appropriate to assist it in the exercise of its functions.
(2) The members of any such subcommittee may include persons who are not members of the Committee.
(3) The chairperson of any such subcommittee must be a person who is a member of the Committee. (4) The regulations may make provision with respect to the constitution and procedure of any subcommittee appointed under this section.
Staff etc. of the Committee
152. The Committee:
(a)
may employ a Registrar and such other staff as it requires to exercise its functions; and
(b)
may fix the salary, wages and other conditions of employment of its staff in so far as they are not fixed by or under any other Act or law; and
(c)
may arrange for the use of the services of any staff (by secondment or otherwise) or facilities of a government department, an administrative office or a public or local authority; and
(d) may engage such consultants as it requires to exercise its functions.
PART 8—MISCELLANEOUS
Committee and Association to submit annual reports
1 153.
( l ) As soon as practicable after 30 June, but on or before 3 1 October, in each year, the Committee and the Association must each
Conveyancers Licensing Act I992 No. 55
prepare and forward to the Minister reports of their work and activities
under this Act for 'the 12 months ending on 30 June in that year.(2) The Minister must lay the reports, or cause them to be laid, before both Houses of Parliament as soon as practicable after receiving the reports.
(3) A report is to deal with such matters as may be prescribed by the regulations and with such other matters as the Committee or Association considers appropriate to include in the report.
Functions of the Council
154. For the purpose of exercising its functions under this Act, the may take such steps as, in the opinion of the Council,, are necessary or proper for or with respect to the investigation of any question as to the conduct of a licensee; and
Council:
may appear, by a solicitor or barrister, before the Supreme Court in the exercise of the Supreme Court's functions under this Act in relation to licensees; and
may commence prosecutions and other proceedings for any
contravention of this Act or the regulations; and
may recover as a debt due to the Law Society any money payable to the Law Society under this Act or the regulations. Functions of the Association
155. The Association has the following functions:
the function of advising the Committee in connection with the approval by the Committee of the policies of indemnity insurance. to be held by licensees;
the function of maintaining a policy of fidelity insurance in
accordance with the requirements of Part 4;
the function of determining, in accordance with the requirements of
Part 4, the contributions payable by licencees in respect of that
policy;
the function of dealing with claims for compensation made againstthe Association under Part 4;
the function of reporting to the Minister on the operation of this Act;
such other functions as are conferred or imposed on it by or under
this Act.
Conveyancers Licensing Act 1992 No. 55
Delivery up of documents
may order the licensee: 156. (1) On the application of a licensee’s client, the Supreme Court
(a)
to give to the client a bill of costs in respect of any conveyancing business transacted by the licensee; and
(b)
to give to the client, on such conditions as the Supreme Court may determine, such of the client’s documents as are held by the
licensee in relation to that business.
(2) This section does not affect the provisions of Division 5 of Part 11 of the Legal Profession Act 1987 with respect to the taxation of bills of costs.
Auditors
A person is not qualified to be appointed, or to act, as auditor of any accounts required by or under this Act to be audited unless the person is a registered company auditor within the meaning of the Corporations Law.
157.
Register of licensees
(1) The Council must maintain at its offices a register of
(2) The register is to be open to public inspection, on payment of such
fee as may be prescribed by the regulations, during normal office hours.158.
licensees in the form required by the regulations.
Evidentiary certificates
A certificate that is issued by the Council and that states that, on a date or during a period specified in the certificate:
159.
(a) a specified person was or was not a licensee; or
(b) a specified licence was or was not subject to a specified condition,
is admissible in any legal proceedings and is evidence of the fact or facts
so stated.
Proceedings for offences
(1) Proceedings for an offence against this Act or the regulations (2) Proceedings for an offence against this Act or the regulations may be brought at any time within 12 months after the date of the alleged offence. alone. 160.
are to be taken before a Local Court constituted by a Magistrate sitting
Conveyancers Licensing Act 1992 No. 55
Order restraining breach of this Act
(1) Any person may bring proceedings in the Supreme Court for
(2) If satisfied that a breach of this Act has been committed or will,
unless restrained by order of the Court, be committed, the Supreme Court
may make such order as it considers appropriate to restrain the breach.161.
an order to restrain a breach of this Act.
Regulations
make regulations, not inconsistent with this Act, for or with respect to 162. (1) The Governor may, on the recommendation of the Minister,
any matter that by this Act is required or permitted to be prescribed or
that is necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) Such a recommendation may not be given by the Minister except after consultation with the Committee.
(3) A regulation may create an offence punishable by a penalty not exceeding 20 penalty units.
Amendment of other Acts
163. Each Act specified in Schedule 2 is amended as set out in that
Schedule.
Savings, transitional and other provisions
164. Schedule 3 has effect.
Conveyancers Licensing Act 1992 No. 55
SCHEDULE l—THE CONVEYANCERS LICENSING
COMMITTEE
(Secs. 147, 149, 150)
Part l—Members of the Committee
Reserve members
(1) The Minister may, for each appointed member of the Committee, appoint one or more reserve members to act in the office of the appointed member during the illness or absence of the appointed member, and the reserve member, while so acting, has and may exercise all the functions of the appointed member and is taken to be a member of the Committee. 1.
(2) A person, in order to be appointed as a reserve member of the Committee, must be qualified for appointment in the same way as the appointed member for whom he or she is the reserve member.
(3) The Minister may remove .my person from any office to which the person was appointed under this clause.
(4) A person while acting in the office of a member of the Committee is entitled to be
paid such remuneration (including travelling and subsistence allowances) as the Minister
may from time to time determine in respect of the person. (5) For the purposes of this clause, a vacancy in the office of a member of the Committee is taken to be an absence from office of the member.
Terms of office
2. Subject to this Schedule, a member of the committee holds office for such period,
not exceeding 7 years, as may be specified in the instrument of appointment of the
member, but is eligible (if otherwise qualified) for reappointment, Remuneration 3. A member of the Committee is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.
Filling of vacancy in office of a member
If the office of any member of the Committee becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy. 4.
Casual vacancies
5. (1) A member of the Committee is taken to have vacated office if the member: (a) dies; or
Conveyancers Licensing Act 1992 No. 55
SCHEDULE 1—THE CONVEYANCERS LICENSING COMMITTEE— continued
(b)
absents himself or herself from 4 consecutive meetings of the Committee of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the Minister (which leave the Minister is authorised to grant) or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the Minister for being absent from those meetings; or
(c)
becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or
(d) becomes a mentally incapacitated person; or
(e)
is convicted in New South Wales of an offence that is punishable by penal servitude or imprisonment for 12 months or upwards, or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable; or
(f) resigns office by instrument in writing addressed to the Minister; or
(g) is removed from office by the Minister under subclause (2).(2) The Minister may remove a member of the Committee from office for incapacity,
incompetence or misbehaviour.
(3) The Chairperson of the Committee is taken to have vacated office as Chairperson if the person:
(a) resigns office by instrument in writing addressed to the Minister, or
(b) ceases to be a member of the Committee.
Conflict of interests
6. (1) If:
(a)
a member of the Committee has an interest in a matter being considered or about to be considered at a meeting of the Committee; and
(b)
the member must, as soon as possible after the relevant facts have come to the member’s
knowledge, disclose the nature of the interest at a meeting of the Committee.the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter, (2) A disclosure by a member at a meeting of the Committee that the member: (a) is a member, or is in the employment, of a specified company or other body; or (b) is a partner, or is in the employment, of a specified person; or
(c)
has some other specified interest relating to a specified company or other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure
and which is required to. be disclosed under subclause (1).
Conveyancers Licensing Act 1992 No. 55
(3) Particulars of any disclosure made under this clause must be recorded by the Committee in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person.
(4) After a member of the Committee has disclosed the nature of an interest in any matter, the member must not, unless the Committee otherwise determines:
(a)
be present during any deliberation of the Committee with respect to the matter; or
(b) take part in any decision of the committee with respect to the matter.
(5) For the purpose of the making of a determination by the Committee under
subclause (4), a member of the Committee who has an interest in a matter to which the
disclosure relates must not:
(a)
be present during any deliberation of the Committee for the purpose of making the determination; or
(b) take part in the making by the Committee of the determination.
(6) A contravention of this clause does not invalidate any decision of the Committee.
Effect of certain other Acts
(1) Part 2 of the Public Sector Management Act 1988 does not apply to or in respect of the appointment of a member of the Committee and a member of the 7.
Committee is not, as a member, subject to that Act.
(2) If by or under any other Act provision is made:
(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office; or (b) prohibiting the person from engaging in employment outside the duties of that office, that provision does not operate to disqualify the person from holding that office and also the office of a member of the Committee or from accepting and retaining any remuneration payable to the person under this Act as a member of the Committee.
Part 2—Procedure of the Committee
General procedure
8. The procedure for the calling of meetings of the Committee and for the conduct of
business at those meetings is, subject to this Act, to be as determined by the Committee.
Quorum
9. The quorum for a meeting of the Committee is 4 members, of whom 1 must be the Chairperson or a member referred to in section 147 (1) (c).
Conveyancers Licensing Act 1992 No. 55
SCHEDULE 1—THE CONVEYANCERS LICENSING COMMITEE— continued
Presiding member
10. member of the Committee referred to in section 147 (1) (c) elected by the members
(1) The Chairperson of the Committee or, in the absence of the Chairperson, a
present is to preside at a meeting of the Committee.
(2) The person presiding at a meeting of the Committee has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
Voting
11. A decision supported by a majority of the votes cast at a meeting of the Committee at which a quorum is present is the decision of the Committee.
Minutes
12. The Committee must cause full and accurate minutes to be kept of the proceedings of each meeting of the Committee.
First meeting
13. The Minister may call the first meeting of the Committee in such manner as the Minister thinks fit.
SCHEDULE 2—AMENDMENT OF OTHER ACTS
(Sec. 163)
Auctioneers and Agents Act 1941 No. 28
Section 84AB (Contracts for sale of residential property): After section 84AB (9), insert:
(10) In this section, a reference to a solicitor includes a reference to alicensee within the meaning of the Conveyancers Licensing Act 1992.
Conveyancing Act 1919 No. 6
(1) Section 7 (Definitions):
In section 7 (l), insert in alphabetical order:
“Licensed conveyancer” means the holder of a licence in force
under the Conveyancers Licensing Act 1992.
(2) Section 53 (Obligation to show title etc.):
In section 53 (2) (e) after “solicitor” wherever occurring, insert “or licensed conveyancer”.
Conveyancers Licensing Act 1992 No. 55
SCHEDULE 2—AMENDMENT OF OTHER ACTS— continued
(3) Section 59 (Rights of purchaser as to execution):
In section 59 (1) after “solicitor” wherever occurring, insert “or licensed conveyancer”.
(4) Section 66P (Definitions):
In the definition of “solicitor” in section 66P (l), after “Temtory”, insert “, and includes a licensed conveyancer”.
(5) Section 66Z (Definitions):
In the definition of “solicitor” in section 66Z (l), after “Territory”, insert “, and includes a licensed conveyancer”.
(6) Section 96 (Power for mortgagor to inspect title deeds):
In section 96 (l), after “solicitor”, insert “or licensed conveyancer”.
(7) Section 176 (Protection of solicitors, licensed conveyancers, trustees etc.):
After “solicitor” wherever occurring, insert “or licensed conveyancer”.
(8) Section 197 (Official searches):
In section 197 (4), after “solicitor” wherever occurring, insert ‘‘or licensed conveyancer”.
(9) Schedule 3 (Conditions of sale):
After “solicitor” wherever occurring, insert “or licensed conveyancer”.
Land Sales Act 1964 No. 12
(1) Section 2 (Definitions): Insert in alphabetical order:
“Licensed conveyancer” means the holder of a licence in force
under the Conveyancers Licensing Act 1992.
(2) Section 7 (Trust deeds):
In section 7 (2), after “solicitor”, insert “or licensed conveyancer”.
Legal Profession Act 1987 No. 109
(1) Section 3 (Definitions):
In section 3 (l), insert in alphabetical order:
“licensed conveyancer” means the holder of a licence in force under
the Conveyancers Licensing Act 1992;
Conveyancers Licensing Act 1992 No. 55
SCHEDULE 2—AMENDMENT OF OTHER ACTS— continued
(2) Section 54 (Functions of Law Society Council):
After section 54 (2), insert:
(3) The Law Society Council also has such functions as are conferredor imposed on it by or under the Conveyancers Licensing Act 1992.
(3) Section 65 (Repayment of deposit with Law Society):
After “section 64” wherever occurring, insert “of this Act or section 36 of the Conveyancers Licensing Act 1992”.
(4) Section 66 (Accounts to be kept by Law Society):
From section 66 (a), omit “and repaid or invested by it under section 65”, insert instead “of this Act or section 36 of the Conveyancers Licensing Act 1992”.
(5) Section 67 (Statutory Interest Account):
Omit section 67 (2) (a), insert instead:
(a)
for the purposes authorised by subsection (3) (c), (cl), (d), (e), (e1), (e2) and (e3)—such mounts as are from time to time incurred under Parts 9 and 10 of this Act or under the Conveyancers Licensing Act 1992 in relation to those purposes; and
After section 67 (3) (c), insert:
(cl) the payment under section 143 of the Conveyancers Licensing Act 1992 of the costs related to the administration of Part 6 of that Act;
After section 67 (3) (e1), insert:
(e2) the costs incurred by the Law Society Council in exercising its functions for the purposes of the Conveyancers Licensing Act 1992;
(e3) the costs incurred by the Conveyancers Licensing Committee in exercising its functions for the purposes of the Conveyancers Licensing Act 1992;
(6) Section 115 (Person acting as a barrister or solicitor):
After section 115 (2), insert:
(2A) Subsection (2) does not prevent a licensed conveyancer from carrying out conveyancing work in accordance with a licence in force under the Conveyancers Licensing Act 1992.
(7) Section 117 (Limitation on general legal work and probate work):
(a) In the definition of “general legal work” in section 117 (l), after the words “preparing an instrument”, insert “or other document”.
Conveyancers Licensing Act I992 No. 55
SCHEDULE 2—AMENDMENT OF OTHER ACTS— continued
(b)
Omit paragraph (b) of the definition of “general legal work” in section 117 (l), insert instead:
(b)
creates, regulates or affects, or purports to create, regulate or affect, rights between parties;
(c) At the end of section 117 (4) (c), insert:
; or
(d) a licensed ‘conveyancer acting in accordance with a licence in
force under the Conveyancers Licensing Act 1992.
(8) Section 121 (Employment of disqualified or convicted persons):
(a) From paragraph (c) of the definition of “disqualified person” in section
121 (8), omit “or” where lastly occurring.
(b)
At the end of paragraph (d) of the definition of “disqualified person in section 12 1 (8), insert:
; or
(e) who is disqualified from holding a licence under the
Conveyancers Licensing Act 1992 by virtue of an order in force under section 139 of that Act.
(9) Section 122:
Omit the section, insert instead:
Order restraining breach of this Act
(1) Any person may bring procedings in the Supreme Court for an order to restrain a breach of this Act. 122.
(2) If satisfied that a breach of this Act has been committed or will, unless restrained by order of the Court, be committed, the Supreme Court may make such order as it considers appropriate to restrain the breach.
(10) After section 209A, insert:
Council to report on its work and activities under the Conveyancers
Licensing Act 1992
209B. (1) As soon as practicable after 30 June, but on or before 31 October, in each year, the Law Society Council must prepare and forward to the Attorney General a. report of its work and activities under the Conveyancers Licensing Act 1992 for the 12 months ending on 30 June in that year. (2) The Attorney General must lay the report, or cause it to be laid, before both Houses of Parliament as soon as practicable after receiving the report.
(3) A report is to deal with such matters as may be prescribed by the regulations and with such other matters ,as the Law Society Council
considers appropriate to include in the report.
Conveyancers Licensing Act 1992 No. 55
SCHEDULE 2—AMENDMENT OF OTHER ACTS— continued
(11) Section 212 (Offences):
At the end of section 212, insert: (2) Proceedings for an offence against this Act or the regulations may be brought at any time within 12 months after the date of the alleged offence.
(12) Section 213A:
After section 213, insert: Evidentiary certificates
213A. (1) A certificate that is issued by the Bar Council and that states
that, on a date or during a period specified in the certificate:
(a)
a specified person was or was not the holder of a barristers’ practising certificate; or
(b)
a specified barrister’s practising certificate was or was not subject to a specified condition,
is admissible in any legal proceedings and is evidence of the fact or facts
so stated.(2) A certificate that is issued by the Law Society Council and that states that, on a date or during a period specified in the certificate:
(a)
a specified person was or was not the holder of a solicitor’s practising certificate; or
(b)
a specified solicitor’s practising certificate was or was not subject to a specified condition,
is admissible in any legal proceedings and is evidence of the fact or facts
so stated.
Real Property Act 1900 No. 25
(1) Section 3 (Definitions):
In section 3 (1) (a), insert in alphabetical order: “Licensed conveyancer”—The holder of a licence in force under
the Conveyancers Licensing Act 1992.
(2) Section 74N (Service of notices on the caveator for the purposes of this
Part):
In section 74N (l), after “solicitor” wherever occurring, insert “or licensed conveyancer”.
(3) Section 96I (Effect of official searches):
In section 96I (2), after “solicitor” wherever occuring, insert “or licensed conveyancer”.
Conveyancers Licensing Act 1992 No. 55
SCHEDULE 3—SAVINGS, TRANSITIONAL AND OTHER PROVISIONS
(Sec. 164)
Part 1—Preliminary
Regulations
1. consequent on the enactment of this Act.
(1) The regulations may include provisions of a savings or transitional nature
(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect from the commencement of this Act or from a later date.
(3) To the extent to which a provision referred to in subclause (1) takes effect from a
date that is earlier than the date of its publication of the Gazette, the provision does not
operate:
(a)
to affect, in a manner prejudicial to any person (other than the State or an authority of the State); the rights of that person existing before the date of its publication; or
(b) to impose liabilities on any person (other than the State or an authority of the State), in respect of anything done or omitted to be done before the date of its
publication.
Part 2—Provisions consequent on enactment of this Act
Definition
2. (1) In this Part:
“appointed day”, in relation to a provision of this Part, means the day occurring 12 months after the date of assent or such earlier day as may be appointed by proclamation for the purposes of that provision.
(2) The Governor may make proclamations for the purposes of the provisions of this
Part. Interim constitution of the Committee appointed day, to comprise the Director-General of the Attorney General’s Department 3. The members of the Committee referred to in section 147 (1) (b) are, until the
and the’ Director of the Land Titles Office, rather than 2 licensees nominated by the
Association,Interim constitution of the Panel
4. For the purposes of section 114, the Panel is, until the appointed day, to be constituted by 1 of its solicitor members and 2 of its lay members rather than by 1 of its licensee members and 2 of its lay members, and is to include (as an additional member) the Director of .the Land Titles Office.
Conveyancers Licensing Act 1992 No. 55
SCHEDULE 3—SAVINGS TRANSITIONAL AND OTHER PROVISIONS—
continued
Interim constitution of the Board
5. For the purposes of section 118, the Board is, until the appointed day, to be constituted by 2 of its solicitor members and 1 of its lay members rather than by 1 of its solicitor members, 1 of its licensee members and 1 of its lay members, and is to include (as an additional member) the Director of the Land Titles Office.
Interim constitution of the Tribunal
6. For the purposes of sections 127 and 132, the Tribunal is, until the appointed day, to be constituted by 2 of its solicitor members and 1 of its lay members rather than by 1 of its solicitor members, 1 of its licensee members and 1 of its lay members, and is to include (as an additional member) the Director of the Land Titles Office.
Interim certificates of eligibility
7. (1) For the purposes of Division 2 of Part 2, any person: who was conducting a conveyancing business (as a principal of the business or as a person responsible for the day to day management of the business) immediately before the commencement of Part 2; and who had conducted a conveyancing business (as a principal of the business or as a person responsible for the day to day management of the business) for at least 2 years prior to 1 March 1992; and who, when applying for a certificate of eligibility to hold a licence, satisfies the Committee that the person is sufficiently knowledgeable in relation to the law and practice of conveyancing to warrant being granted a licence by virtue of this clause, is, subject to section 5, qualified to hold a licence even if the person does not have the educational qualifications, practical training or conveyancing experience approved by the Committee for the purposes of Part 2.
(2) The Committee may, for the purposes of this clause, examine any applicant as to
his or her knowledge in relation to the law and practice of conveyancing and cause aninspection to be made of the accounts in relation to his or her conveyancing business.
(3) A person is not entitled to be granted a certificate of eligibility to hold a licence
by virtue of this clause unless the person lodges an application for such a certificate
within 6 months after the commencement of Part 2.(4) A member of the Committee. (as constituted in accordance with clause 3) is not
entitled to be granted a certificate of eligibility to hold a licence by virtue of this clause.
Conveyancers Licensing Act 1992 No. 55
DICTIONARY OF WORDS AND EXPRESSIONS
(Sec. 3)
affairs, in relation to .a licensee, includes:
(a)
accounts kept by or on behalf of the licensee or an associate of the licensee; and
(b) any other records kept by or on behalf of the licensee or an
associate of the licensee; and
(c)
any transactions to which the licensee was a party or in which the licensee acted for a party; and
(d) any related matter that an inspector considers should be further investigated.
Association means the Association of Property Conveyancers.' Board means the Legal Profession Standards Board constituted under Part 10 of the Legal Profession Act 1987.
Committee means the Conveyancers Licensing Committee constituted under section 146.
controlled money means money required to be dealt with in
indirect control of the licensee by or on whose behalf it is received, accordance with section 33 (1) (b) that, while under the direct or
is for the time being held otherwise than in a general trust account at
a bank in New South Wales.
conveyancing business means any business in the course of which conveyancing work is carried out for fee or reward, whether or not the carrying out of conveyancing work is the sole or dominant purpose of the business.
conveyancing work has the meaning given to it by section 4.
costs includes fees, charges, disbursements, expenses and remun-eration.
Council means the Law Society Council.
disqualified person has the meaning given to it by section 5.exercise a function includes, where the function is a duty, to perform
the duty.
firm of licensees includes any licensees who share remuneration as licensees, whether or not on the same basis for each of them.
function includes a power, authority and duty.
Law Society means the Law Society of New South Wales.
licence means a licence in force under this Act.
licensee means the holder of a licence in force under this Act,Conveyancers Licensing Act 1992 No. 55
DICTIONARY OF WORDS AND EXPRESSIONS— continued
money includes an instrument enabling a bank to credit or, debit an
amount of money to an account with the bank.
money received, in relation to a licensee, includes:
(a) money coming under the direct control of the licensee, whether or not by the exercise of an express power or authority or by operation of law; and (b) money paid to an associate of the licensee on the advice of the licensee, but only if the money is under the direct or indirect control of the licensee; and (c) money in relation to which the licensee (whether or not through an associate) has a power of disposal exercisable jointly and severally with the person on whose behalf it was received or a nominee of that person. Panel means the Legal Profession Conduct Review Panel constituted under Part 10 of the Legal Profession Act 1987.
professional misconduct includes:
(a)
unsatisfactory professional conduct, if the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence; and
(b)
conduct (whether consisting of an act or omission) occurring. otherwise than in connection with a conveyancing business which, if established, would justify a finding that a licensee is not of good fame and character; and
(c) conduct that is declared to be professional misconduct by any provision of this Act.
record includes any book, account, document, paper or other source of information compiled, recorded or stored in written form or on
microfilm, or by electronic process, or in any other manner or by
any other means.Statutory Interest Account means the Statutory Interest Account maintained by the Law Society under Part 6 of the Legal Profession Act 1987.
Tribunal means the Legal Profession Disciplinary Tribunal constituted under Part 10 of the Legal Profession Act 1987.
Conveyancers Licensing Act 1992 No. 55
DICTIONARY OF WORDS AND EXPRESSIONS— continued
trust money means money required to be dealt with in accordance with section 33 (1) (a).
unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) occurring in connection with a conveyancing business that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent licensee.
[Minister’s second reading speech made in—
Legislative Assembly on 30 June 1992 Legislative Council on 16 September 1992]
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