Money Lenders Act Amendment Act 1979 (Qld)

420 (111CEttsIitttr tgtilcn, ;,.^ t '. ^ . M, rs iSS ANNO VICESIMO OCTAVO ELIZABETHAE SEC U NDAE REGINAE °6-O-^C ? O -!--0-4-00 P+0+4 itN- -^-r4^T^4 No. 41 of 1979 An Act to amend the Money Lenders Act 1916-1973 in certain particulars [ASSENTED TO 26TH JUNE, 1979] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title and citation . (1) This Act may be cited as the ;1'fonet` Lenders Act Amendment Act 1979. (2) In this Act the Monet Lenders Act 1916-1973 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Memel' Lenders Act 1916-1979. 2. Commencement . This Act shall come into operation on a day to he appointed by Proclamation.

Money Lenders Act Amendment Act 1979, No. 41 421 3. Amendment of s. 3. Section 3 of the Principal Act is amended by, in the definition " person ", omitting the words " registered under " The Registration of Firms Acts, 1902 to 1912." " and substituting the words " within the meaning of the BusinessNames Act1962-1976.". 4. New ss. 14A to 14N. The Principal Act is amended by inserting after section 14 the following sections:- " 14A. Mortgage brokers. (1) The provisions of section 14 do not apply to a person registered as a mortgage broker under this Act in respect of his carrying on the business of a mortgage broker. (2) For the purposes of this section and sections 14B to 14N- mortgage broker " means a person who, whether or not he carries on any other business, carries on or advertises or announces himself or holds himself out in any way as carrying on the business of procuring, negotiating or arranging for the conveyance or transfer of any mortgage or mortgages secured on land or on land and improvements thereon, whether the conveyance or transfer is absolute or by way of security; person " means an individual or a body corporate; register " means the Register of Mortgage Brokers required to be kept under section 14n. 14B. Register of Mortgage Brokers. (1) The registrar shall keep in such form.as he thinks fit a register to be called the. Register of Mortgage Brokers in which he shall cause to be registered the names of all persons approved by him to carry on the business of a mortgage broker and the address or addresses in Queensland at which it is proposed that such business will he carried on and any conditions to which his approval is subject. (2) The registrar may enter in the register such particulars as he thinks fit in relation to any registration in the register. (3) The register shall be available for perusal by any member of the public at any reasonable time on payment of the prescribed fee. (4) The registrar may, on payment of the prescribed fee. issue a certificate relating to any entry in the register or a copy of or extract from any such entry and every such certificate, copy or extract purporting to have been issued by the registrar shall be accepted in all proceedings as evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained therein. 14C. Application for registration. (I) A person who proposes to carry on the business of a mortgage broker shall lodge with the registrar an application to have his name and each address in Queensland at which the business is to be carried on registered in the register. (2) Every application- (a) shall he made in the prescribed form and manner: and (h) shall he accompanied by a fee of $200 or such other amount, not exceeding $300, as may be prescribed for the purpose from time to time by the regulations.

422 Money Lenders Act Amendment Act 1979, No. 41 (3) Every applicant shall supply to the registrar such further information as the registrar may require in relation to the application. 14D. Registrar ' s disposal of applications . (1) Upon consideration of an application the registrar may grant the application (without conditions or with such conditions as he thinks appropriate) or refuse it. (2) Before granting an application the registrar shall enquire- (a) in the case of an application made by an individual, into the character and financial position of the applicant; (b) in the case of an application made by a body corporate, into the financial position of the applicant and into the character of each director of the applicant and of the secretary of the applicant, and shall satisfy himself, after consideration of the interests of the public, that the applicant is a fit and proper person to be approved by him to carry on the business of a mortgage broker. For the purpose of enquiring into the matters referred to in this subsection the registrar may request the Commissioner of Police to furnish him with a report on the character of the applicant or, where the applicant is a body corporate, on the character of all or any of the directors and the secretary of the applicant, and the Commissioner of Police, upon receipt of such request shall cause enquiries to be made and a report to be furnished to the registrar in accordance with the request. (3) If the registrar grants an application he shall issue to the applicant a certificate in the prescribed form which shall specify the matters registered in the register in respect of the applicant. (4) If the registrar refuses an application he shall, as soon as practicable thereafter, cause written notice of such refusal and the grounds thereof to be given to the applicant. (5) Upon the refusal or withdrawal of an application for registration in the register, there shall be refunded to the-applicant or to any person who appears to the registrar to be entitled thereto, such part of the fee paid by the applicant under section 14c as may be prescribed. 14E. Renewal and duration of registration . (1) Renewal of registration of a name in the register may be effected by the payment to the registrar of a fee of $200 or such other amount, not exceeding $300, as may be prescribed for the purpose from time to time by the regulations, at any time before the expiration of the current period of registration. (2) Subject to section 14F, registration of a name in the register and any renewal of such registration shall continue in force for one year from the date on which the registration is made in the register or, as the case may be, from the date on which the last preceding period of registration would have expired if not renewed.

Money Lenders Act Amendment Act 1979, No. 41 423 14F. Cancellation and suspension of registration . (1) If the registrar forms the opinion- (a) where the person registered in the register is an individual, that he is not a fit and proper person to continue to be so registered; or (b) where the person registered in the register is a body corporate- (i) that any director or the secretary thereof is not a fit and proper person to be a director or, as the case may be, the secretary of a body corporate so registered; or (ii) that the affairs of the body corporate have been so conducted as to render it unfit to continue to be so registered, he may, by written notice given to the person registered, require him or it to show cause to the registrar at a time and place specified in the notice why the registration in the register should not be cancelled or, at the registrar's election, suspended. The notice shall be served- (a) personally on the person to whom it is directed; or (b) by post addressed to the person to whom it is directed at an address registered in the register in relation to such person or by delivery to such an address for such person, and where the notice alleges a ground referred to in provision (b) of the preceding paragraph, a copy of the notice shall be served in a manner aforesaid on every director and the secretary of the person registered. (2) If cause to the contrary is nod shown to the registrar's satisfaction (whether at the time and place specified in the notice or at a time and place to which the matter may have been adjourned or transferred by the registrar) the registrar may determine to cancel or, at his election, to suspend for a period the registration in the register of the person so registered, whereupon he shall by written notice notify that person of his determination in a manner prescribed by subsection (1). (3) If within 30 days after the registrar has given or dispatched notice of his determination, the person whose registration in the register is proposed to be cancelled or suspended has not duly instituted an appeal provided for by section 14G and duly notified the registrar of such appeal, the registrar may- (a) where the determination is to cancel a registration, remove from the register the name and other particulars of the person concerned, whereupon that person's registration shall be taken to be cancelled; or (b) where the determination is to suspend a registration, endorse the registration in the register of the person concerned with particulars of the suspension, whereupon that person's registration shall be taken to be suspended for the period determined by the registrar.

424 Money Lenders Act Amendment Act 1979, No. 41 (4) Where a registration in the register is cancelled or suspended the person whose registration is affected shall within seven days thereafter deliver his certificate of registration to the registrar who shall, in the case of suspension, retain the certificate until the expiration of the period of suspension. 14G. Appeal against registrar ' s determination . (1) The person aggrieved by the registrar's determination to refuse an application for registration in the register or to cancel or suspend a registration in the register or to impose a condition upon a registration in the register may appeal against the determination to a Judge of District Courts (at Brisbane or at a place where the person aggrieved carries on or proposes to carry on the business of a mortgage broker, being a place appointed for holding such courts), who is hereby invested with jurisdiction to hear and determine the appeal and to' make such order therein as to him appears just (including an order as to costs of the appeal) and whose decision shall be final and binding on the appellant and the registrar. (2) Every appeal- (a) shall be instituted within 21 days after receipt by the -person aggrieved of notice of the registrar's determination by filing in the registry of the District Court at the place where the appeal is to be instituted a notice of appeal specifying the grounds of appeal and depositing in that registry the sum of $250 by way of security for costs of the appeal; (b) shall be by way of rehearing, if there exists a sufficient record of the proceedings before the registrar from which the appeal is brought, and otherwise shall be a hearing de novo: Provided that where an appeal is by way of rehearing either party may, by leave of the Judge, lead further evidence in support of or in addition to evidence given before the registrar. (3) Within seven days after institution of an appeal the appellant shall cause to be given to the registrar a copy of the notice of appeal and to be furnished to the registrar evidence of the deposit of the prescribed security for costs of the appeal. Upon being satisfied that an appeal has been duly instituted the registrar shall cause to be furnished as soon as practicable to the registrar of the District Court at the place where the appeal is instituted a copy of all notices given by the registrar relevant to the matter of the appeal and a copy of the record (if any) of the proceedings before the registrar from which the appeal is brought. (4) The power to make rules of court conferred by the DistrictCourts Act1967-1978 extends to making all such rules as are considered necessary or convenient for regulating the procedure and practice of District Courts in relation to appeals provided for by this section. Until such rules are made or in so far as the rules made do not provide, the Judge hearing an appeal may, in relation to the particular case, give such directions as he thinks fit and the directions shall be given effect in the conduct of that appeal.

Money Lenders Act Amendment Act 1979, No. 41 425 14H. Notification of matters concerning mortgage brokers' business . (1) A person whose name is registered in the register shall give written notification to the registrar forthwith upon any variation in the address or addresses in Queensland at which that person carries on or proposes to carry on the business of a mortgage broker. Penalty : $200. (2) A person whose name is registered in the register, being a body corporate, shall give written notification to the registrar forthwith upon any variation in the membership of the governing body thereof or in the identity of the secretary thereof. Penalty: $200. (3) A person whose name is registered in the register shall give written notification to the registrar forthwith upon his ceasing to carry on in Queensland business as a mortgage broker. Penalty: $200. (4) The registrar shall- (a) upon receipt by him of a notification referred to in subsection (1) or (2), make an appropriate amendment in the register in relation to the registration to which the notification relates; (b) upon receipt by him of a notification referred to in subsection (3), remove from the register the name to which the notification relates and all particulars in the register relating to the registration of that name. 141. Mortgage broker must be registered . A person shall not carry on, or advertise or announce himself, or hold himself out in any way as carrying on the business of a mortgage broker unless his name is registered in the register. Penalty: $10 for each day on which he contravenes this section. 14J. Mortgage broker to carry on business in registered name and at registered address. A person whose name is registered in the register shall not carry on the business of a mortgage broker- (a) under the name of a partnership of which he is a member, or a name under which he carries on business and which is registered under the Business Names Act, 1962-1976, or any other name, unless the name is one of the particulars entered in the register in respect of that person and every person in association with whom he carries on the business of a mortgage broker under that name is registered in the register as a mortgage broker; (b) except at an address registered in the register as an address at which that person's business as a mortgage broker is to be carried on. Penalty: $10 for each day on which he contravenes this section.

426 Money Lenders Act Amendment Act 1979, No. 41 14K. Mortgage broker to advertise registered name and address. A person whose name is registered in the register shall not publish, cause to be published, or suffer to be published, by any means whatever, an advertisement relating to or in connexion with his business as a mortgage broker without specifying therein- (a) subject to paragraph (b), his name or a name that is one of the particulars entered in the register in respect of him; or (b) in a case where the requirements of section 141 (a) in respect of a business name are met and the business is carried on under the business name in question, that business name and his name; and (c) an address registered in the register as an address at which his business as a mortgage broker is or is to be carried on. Penalty: $200. 14L. Mortgage broker to keep records . (1) A person whose name is registered in the register shall- (a) at a time not later than immediately after he effects a conveyance or transfer of a mortgage, legibly make in a bound book or a manner approved in writing by the registrar a written record containing full particulars of the transaction involving that conveyance or transfer; (b) preserve a record made by him under this subsection for a period of at least three years after the date of the conveyance or transfer of mortgage to which the record relates; and (c) upon being requested to do so by the registrar or a person authorized in writing by the registrar, generally or in a particular case, produce a record made by him under this subsection for inspection by the person who makes the request. Penalty: $200. (2) An entry in a written record kept-at an address registered in the register as an address at which the business of a mortgage broker is to be carried on shall be deemed, unless the contrary is proved, to have been made therein by or with the authority of the person in respect of whom that address is so registered as a particular. (3) Where it appears to the registrar or a person authorized in writing by him necessary to do so for the purpose of obtaining evidence for production in any proceeding (whether pending or not) against a person whose name is registered in the register, he may seize, make copies of or extracts from, and retain any books, documents, records or writings in the possession of or belonging to such person in connexion with his carrying on the business of a mortgage broker. 14M. Misrepresentation an offence , A person whose name is registered in the register or a person acting on his behalf shall not by any false, misleading or deceptive statement, representation or promise, or by dishonest concealment of material facts induce,

Money Lenders Act Amendment Act 1979, No. 41 427 or attempt to induce, a person to enter into an agreement or contract for or with respect to a conveyance or transfer of a mortgage. Penalty: $500 or imprisonment for three months or both. 14N. Restrictions on mortgage broker ' s right to fee. (1) Subject to this section, in respect of each transaction in the business of a mortgage broker there shall be but one fee payable and that fee shall be paid by the person or persons who convey or transfer the mortgage or mortgages in that transaction. Where there are two or more mortgage brokers engaged in the one transaction the fee payable pursuant to this section shall be shared by them. (2) A mortgage broker shall not demand, receive or accept, directly or indirectly, or retain , solely or as a partner with any other person, any moneys for or in respect of procuring, negotiating or arranging the conveyance or transfer of a mortgage- (a) unless- (i) his engagement or appointment to act as a mortgage broker is in writing signed by the person charged or to be charged with the payment of his fee; (ii) an actual conveyance or transfer of the mortgage occurs as a result of the activity of the mortgage broker with a view to procuring, negotiating or arranging the same; and (iii) his receipt, acceptance or retention of those moneys is or would be permitted by subsection (I); or (b) if- (i) following the conveyance or transfer of the mortgage, he will have, directly or indirectly, an interest in the mortgage; or (ii) the amount of those moneys exceeds two per centum of the sum paid as consideration for the conveyance or transfer of the mortgage or such less rate per centum thereof as may be prescribed by the regulations. Penalty: $500. (3) Upon convicting a person whose name is registered in the register of an offence against subsection (2) the adjudicating court may order him to refund any moneys received, accepted or retained by him contrary to that subsection together with interest at such rate as is fixed by the court, not exceeding 8 pet centum per.annum from the time of the receipt, acceptance or retention of the moneys until the time when it is refunded. The amount ordered to be refunded together with interest accrued thereon shall constitute a debt due and owing to the person to whom the refund is ordered to. be made and may be recovered by action for debt in a court of competent jurisdiction. (4) Notwithstanding the provisions of subsection (1) or (2), a person whose name is registered in the register and who has been engaged or appointed in writing to act as a mortgage broker may recover from the person charged with the payment of his fee an amount paid by the mortgage broker as the cost of obtaining a valuation of any security to which the mortgage or mortgages sought to be conveyed or transferred relate.".

428 Money Lenders Act Amendment Act 1979, No. 41 5. Repeal of and new s. 17B. The Principal Act is amended by repealing section 17B and substituting the following section:- " 17B. Liability in case of offence by corporation or company. Where the person who contravenes or fails to comply with any provision of this Act is a corporation or company every director thereof or member of the governing body thereof (by whatever name called) and every manager, secretary or other officer thereof shall be deemed to have contravened or failed to comply with that provision in like manner and shall be liable to a penalty accordingly, unless he proves that the contravention or failure occurred without his knowledge and that he used all due diligence to prevent its occurrence.". 6. New s. 17K. The Principal Act is amended by inserting after section 171 the following section:- " 17K. Indemnity to persons discharging functions under Act. Neither the Crown nor any person shall incur liability on account of any act done or decision taken in good faith and without negligence for the purposes of this Act or purporting to be for those purposes.". 7. Amendment of s. 18. Section 18 of the Principal Act is amended by- (a) in subsection (1), inserting after the words " of money-lenders the words " and mortgage brokers within the meaning of section 14A (2)"; (b) adding at the end of subsection (1) the following paragraph:- " Such regulations may also prescribe such matters as are required or permitted by this Act to be prescribed where the means by which they are to be prescribed are not otherwise provided for.".