Mortgage Brokers Act 1987 (Qld)

745 Queenstanb ANNO TRICESIMO SEXTO ELIZABETHAE SECUNDAE REGINAE B , i J , 55 a f c An Act to provide for the registration of mortgage brokers, to regulate certain practices of mortgage brokers and for other purposes [ASSENTED TO 1ST OCTOBER, 1987]

746 Mortgage Brokers Act 1987, No. 55 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- PART I-PRELIMINARY 1. Short title . This Act may be cited as the Mortgage Brokers Act 1987. 2. Commencement . (1) Section 1 and this section shall commence on the day on which this Act is assented to for and on behalf of Her Majesty. (2) Except as provided in subsection (1), this Act shall commence on a day appointed by Proclamation. 3. Arrangement . This Act is arranged as follows:- PART I-PRELIMINARY (ss. 1-6); PART II-REGISTRATION OF MORTGAGE BROKERS (ss. 7-20); PART III-CONDUCT OF BUSINESS OF MORTGAGE BROKING (ss. 21-23); PART IV-MISCELLANEOUS (ss. 24-34). 4. Savings . Without limiting the operation of the Acts InterpretationAct 1954-1977, a person who, immediately prior to the commencement of this section, was a registered mortgage broker under the Money Lenders Act 1916-1986 shall be a registered mortgage broker under and subject to this Act whilst his name remains in the register. 5. Interpretation . (1) In this Act, unless the contrary intention appears- "Minister" means the Minister of the Crown for the time being administering this Act and includes any Minister of the Crown who is temporarily performing the duties of the Minister; "mortgage broker" means a person who carries on or holds himself out in any way as carrying on the business of mortgage broking; "mortgage broking" means 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; "register" means the Register of Mortgage Brokers required to be kept under section 7; "registered" means registered in the register under this Act; "registrar" means the Registrar of Commercial Acts, Brisbane, appointed under the Administration of Commercial Laws

Mortgage Brokers Act 1987, No. 55 747Act 1962-1987: The term includes any Deputy Registrar of Commercial Acts, Brisbane appointed under that Act. (2) In this Act, unless the contrary intention appears, where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings. 6. Business of mortgage broker . In this Part, a reference to carrying on a business of mortgage broking includes a reference to carrying on mortgage broking in the course of or as part of or as incidental to or in connexion with the carrying on of another business. PART II-REGISTRATION OF MORTGAGE BROKERS 7. Register. (1) (a) 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 each person approved by him to be registered as a mortgage broker, the name under which and each address in Queensland at which the business is to be carried on and such other particulars as may be prescribed. (b) The Register of Mortgage Brokers kept under section 14B of the Money Lenders Act 1916-1986 shall continue and shall, subject to this Act, be the register for the purposes of this Act. (2) The register shall be available for perusal by any member of the public at any reasonable time on payment of the prescribed fee. (3) 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. 8. Application for registration . (1) A person who proposes to carry on the business of mortgage broking shall lodge with the registrar an application to have registered his name, the name under which and each address in Queensland at which the business is to be carried on. (2) An application- (a) shall be made in the prescribed form and manner; (b) shall be accompanied by the prescribed fee; (c) shall contain the prescribed particulars; and (d) may set out any other matter that the applicant wishes the registrar to consider. (3) An applicant shall supply to the registrar such further information as the registrar may require in respect of the application. 9. Registrar ' s disposal of applications . (1) Upon consideration of an application, the registrar may grant the application (with or without conditions as he thinks appropriate) or refuse it.

748 Mortgage Brokers Act 1987, No. 55 (2) Before granting an application the registrar shall enquire- (a) in the case of an application made by a natural person, 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 carry on the business of mortgage broking. 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. (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, 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 8 as may be prescribed. 10. Continuation of registration . Except during any period while it is suspended, registration continues in force until it is cancelled under section 11, 12 or 14. 11. Annual fee and annual statement . (1) A registered person shall, before the expiration of one month after each anniversary of the date on which his application for registration was granted- (a) pay to the registrar in respect of the year commencing on that anniversary the prescribed fee; (b) lodge with the registrar a statement in the prescribed form signed by or on behalf of that person. (2) The registrar may, on the application of a person required to comply with subsection (1) extend or further extend the time for compliance with that subsection. (3) Where a person has failed to pay a fee or lodge a statement or pay a fee and lodge a statement in accordance with this section, the registrar shall give notice in writing to that person that unless the fee

Mortgage Brokers Act 1987, No. 55 749 is paid or the statement lodged or the fee is paid and the statement lodged, as the case may require, together with the prescribed late fee before a day specified in the notice being a day that is not earlier than 14 days after the giving of the notice, the registration will be cancelled. (4) The registrar shall cancel the registration of a person who fails to pay a fee or lodge a statement, or both pay a fee and lodge a statement, as referred to in a notice given under subsection (3). (5) A person whose registration is cancelled pursuant to subsection (4) shall, within seven days- after the cancellation deliver his certificate of registration to the registrar. 12. Notification of change etc. (1) If, during the period of registration of a person- (a) a change occurs in the particulars specified in, or in connexion with, the application for that registration; (b) a change occurs in the particulars specified in the last annual statement lodged under section 11 (1); or (c) that person ceases to carry on in Queensland business as a mortgage broker, that person shall, within 14 days of the occurrence of the change or cessation of business, give to the registrar notice in writing specifying particulars of the change or of cessation of business and, in a case referred to in paragraph (c) or a case where the change relates to particulars specified in the certificate of registration issued to that person, deliver the certificate to the registrar. (2) The registrar shall- (a) upon receipt by him of a notice referred to in paragraph (a) or (b) of subsection (1), 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 paragraph (c) of subsection (1), cancel the registration; (c) upon receipt by him of a certificate of registration for amendment, make the appropriate amendment to the certificate and return the amended certificate to the registered person. (3) Where the registration of a person is cancelled pursuant to subsection (2), the registrar shall refund to the person formerly registered so much of the annual fee last paid as the registrar, upon application by that person, determines as appropriate to be refunded. 13. False and misleading statements , etc. (1) A person shall not, in or in relation to an application made under section 8 or a statement required to be lodged under section 11 (1) or a notice required to be given under section 12 (1), make a statement that is false or misleading

750 Mortgage Brokers Act 1987, No. 55 by reason of the inclusion in the statement of any false or misleading matter or the omission from the statement of any material matter. Penalty: 100 penalty units. (2) It is a defence to a prosecution of a person for an offence under subsection (1) if he proves that, when the application or statement was lodged, or the notice given, he- (a) believed on reasonable grounds that the false matter was true; (b) believed on reasonable grounds that the misleading matter was not misleading; (c) in the case of an omission, believed on reasonable grounds that no material matter had been omitted; or (d) in the case of an omission, did not know that the omitted matter was material. 14. Cancellation and suspension of registration . (1) If the registrar forms the opinion- (a) where the registered person is a natural person, that he is not a fit and proper person to continue to be so registered; or (b) where the registered person is a body corporate- (i) that any director or the secretary thereof is not a fit and pi oper 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 registered person, require him or it to show cause to the registrar at a time and place specified in the notice why the registration should not be cancelled or, at the registrar's election, suspended. Where the notice alleges a ground referred to in provision (b), a copy of the notice shall be served in a like manner on every director and the secretary of the registered person. (2) If cause to the contrary is not 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 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 is proposed

Mortgage Brokers Act 1987, No. 55 751 to be cancelled or suspended has not duly instituted an appeal provided for by section 15 and duly notified the registrar of such appeal, the registrar may- (a) where the determination is to cancel a registration, cancel that person's registration; 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 suspended for the period determined by the registrar. (4) Where a registration 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. (5) Nothing contained in the preceding subsections shall prevent the registrar from cancelling the registration of a person upon delivery to the registrar of that person's certificate of registration and a request to cancel the registration. 15. Appeal against registrar's determination . (1) The person aggrieved by the registrar's determination to refuse an application for registration or to cancel or suspend a registration or to impose a condition upon a registration 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 mortgage broking, 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 prescribed sum 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

752 Mortgage Brokers Act 1987, No. 55 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 Act 1967-1985 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. 16. Mortgage brokers to be registered . (1) Subject to this Act, a person shall not carry on a business of mortgage broking unless he is registered in respect of that business. (2) Subject to this Act, a person shall not hold himself out as carrying on a business of mortgage broking unless he is registered in respect of that business. 17. Mortgage broker to carry on business under specified names. (1) Subject to the Business Names Act 1962-1979, a registered person may carry on business in accordance with his registration under the name or names specified in the register. (2) A registered person shall not carry on a business of mortgage broking or hold himself out as carrying on such a business under a name or names other than the name of the registered person or the name or names under which he is authorised so to do in accordance with subsection (1). 18. Mortgage broker not to carry on business with unregistered partner . A registered person shall not carry on a business of mortgage broking in partnership with a person who is not a registered person. 19. Mortgage broker not to carry on business at unregistered address. A registered person shall not carry on the business of mortgage broking except at an address registered as an address at which that person's business as a mortgage broker is to be carried on. 20. Mortgage broker to advertise registered name and address. A registered person shall not publish, cause to be published, or suffer to

Mortgage Brokers Act 1987, No. 55 753 be published, by any means whatever, an advertisement relating to or in connexion with his business of mortgage broking 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; (b) in a case where the business is carried on under a name other than his own, that other name and his name; and (c) an address registered as an address at which his business as a mortgage broker is or is to be carried on. PART III-CONDUCT OF BUSINESS OF MORTGAGE BROKING 21. Mortgage broker to keep records . (1) A mortgage broker 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; and (b) preserve a record made by him under this subsection for a period of at least seven years after the date of the conveyance or transfer of mortgage to which the record relates. (2) An entry in a written record kept at an address registered 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. 22. Misrepresentation an offence . A mortgage broker 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, or attempt to induce a person to enter into an agreement for or with respect to a conveyance or transfer of a mortgage. 23. 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 I rson 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,

754 Mortgage Brokers Act 1987, No. 55 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 (1); 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 the rate per centum prescribed for the time being of the sum paid as consideration for the conveyance or transfer of the mortgage. (3) Upon convicting a person 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 the prescribed per centum or, where a per centum is not prescribed, not exceeding 8 per 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 registered person who has been engaged or appointed in writing to act as a mortgage broker may recover, in addition to his fee, 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. PART IV-MISCELLANEOUS 24. Power of registrar to enter premises . (1) For the purpose of ascertaining whether the provisions of this Act are being or have been complied with by a person who is or has been a mortgage broker, the

Mortgage Brokers Act 1987, No. 55 755 registrar and any other person authorized in writing in that behalf by him may- (a) enter premises where the business of the firstmentioned person is being or has been carried on; (b) require the production of records; (c) inspect and require explanation of any record; and (d) take notes, copies and extracts of or from any record or statement produced pursuant to this section. (2) Where the registrar or a person authorized by him requires production under subsection (1) of a record that is not in writing, is not written in the English language or is not decipherable on sight, the requirement to produce the record shall be deemed to be a requirement to produce, in addition to the record if it is in writing, or instead of the record if it is not in writing, a statement, written in the English language and decipherable on sight, containing the whole of the information in the record. (3) The registrar or a person authorized by him shall so far as he is able exercise the powers under this section in a manner that causes as little inconvenience to the business of the mortgage broker as is consistent with the exercise of the powers. (4) (a) Before the registrar or a person authorized by him enters a part of any premises or other place which part is used exclusively as a dwelling-house he shall, save where he has the permission of the occupier of that part to his entry, obtain from a justice a warrant to enter. (b) A justice who is satisfied upon the complaint of the registrar or an authorized person that there is reasonable cause to suspect that an offence against this Act has been, is being or is about to be committed on any premises may issue his warrant authorizing the registrar or any person authorized by the registrar to enter the premises named in the warrant for the purpose of exercising therein the powers and authorities conferred upon the registrar by or under this Act. (c) A warrant shall be, for the period of 14 days from the date of its issue, sufficient authority for the registrar and any person authorized by him- (i) to enter the premises specified in the warrant; and (ii) to exercise therein the powers and authorities conferred upon the registrar by or under this Act. (d) For the purposes of this subsection, premises that are used as a dwelling-house do not include the curtilage of those premises.

756 Mortgage Brokers Act 1987, No. 55 25. Persons not to obstruct registrar . (1) A person shall not- (a) wilfully delay or obstruct the registrar or other person authorized by him in the exercise of powers under section 24; (b) refuse or fail, without reasonable excuse, to produce, or conceal or attempt to conceal, any record or statement that under section 24 (1) or (2) he is required to produce; (c) being a mortgage broker or, where the mortgage broker is a body corporate, an officer of the mortgage broker, refuse or fail to answer a question or give an explanation relating to any such record or statement put to or required of him by a person entitled to require production of the record or statement who first informs him that he is required and obliged by this section to answer the question or give the explanation; or (d) being a mortgage broker or, where the mortgage broker is a body corporate, an officer of the mortgage broker, give to a question relating to any record or statement an answer that he knows is false or misleading or give an explanation of any record or statement that he knows is a false or misleading explanation. Penalty: 40 penalty units. (2) A person is not excused from answering a question put to him by the registrar or other authorized person on the ground that the answer might tend to incriminate him but, where he claims, before answering the question, that that answer might tend to incriminate him, the answer is not admissible in evidence against him in proceedings for an offence against this Act other than an offence under subsection (1) (a) (b) or (d). 26. Dispensing with production of certificate of registration. The registrar may exercise his powers under sections 11, 12 and 14 notwithstanding that a relevant certificate of registration has not been delivered to him where he is satisfied that the certificate has been lost. 27. Issue of fresh certificate of registration . Where the registrar is satisfied that a certificate of registration is lost or if, for any reason, he considers a certificate of registration should be replaced, the registrar may issue a fresh certificate in lieu of the lost certificate or may cancel the current certificate and issue a fresh certificate in lieu thereof. 28. General penalty. A person who contravenes or fails to comply with a provision of this Act commits an offence against this Act and, save where a specific penalty is otherwise provided, is liable to a penalty of 20 penalty units. 29. Offence by body corporate . Where an offence against this Act committed by a body corporate is proved to have been committed with the consent or connivance of a person who is a director, manager, secretary or other officer of the body corporate, that person, as well as the body corporate, shall be deemed to have committed that offence and is liable to be proceeded against and punished accordingly.

Mortgage Brokers Act 1987, No. 55 757 30. Proceedings for offences . (1) An offence against this Act may be prosecuted in a summary way under the Justices Act 1886-1985, upon the complaint of- (a) the registrar; or (b) any person authorized in that behalf either generally or in the particular case by the Minister. (2) A prosecution for an offence against this Act may be brought within three years after the offence is committed, or, with the consent of the Minister, at any later time. (3) An authority to prosecute purporting to have been signed by the Minister is evidence of that authority without proof of the signature of the Minister. 31. Fees and penalties . All fees paid and all penalties recovered and costs incurred in relation to proceedings under this Act shall be paid to and form part of the Consolidated Revenue Fund. 32. Evidentiary provisions . In a proceeding for the purposes of this Act- (a) a document purporting to be a certificate relating to any entry in the register or a copy of an extract from such entry shall, upon its production in that proceeding, be evidence and in the absence of evidence to the contrary, conclusive evidence of the matters contained in the document; (b) a document purporting to be signed by the registrar stating that at a specified time or during a specified period a person named in the document was or was not registered or was registered subject to specified conditions shall, upon its production in that proceeding, be evidence and, in the absence of evidence to the contrary, conclusive evidence of: the matters contained in the certificate. 33. Service of documents . (1) Where, under this Act, a document or notice is required or permitted to be given to or served on a person, the document or notice may be given or served- (a) where the person is a natural person, by giving it to or serving it personally on the person or by sending it by post to the person at the person's usual or last known place of abode or business; (b) where the person is a body corporate, by leaving it at or sending it by post to the registered office of the body corporate; or (c) where the person is a registered person, by giving it to or serving it personally on the person or by leaving it at or sending it by post to an address registered as that person's place of business.

758 Mortgage Brokers Act 1987, No. 55 (2) If a document left at or sent by post to the address of the registered office of a body corporate will not be, or is not likely to be, received by the body corporate, a document may be served on the body corporate by delivering a copy of the document personally to each of 2 directors of the body corporate who reside in the State or by sending a copy of the document by post to each of 2 such directors at the address of those directors last known to the person sending the copy of the document. (3) In subsections (1) and (2), "registered office" means- (a) the office of the body corporate that is the registered office or principal office in accordance with the law of the State or Territory by or under which the body corporate is incorporated; (b) where the body corporate is not incorporated in Australia, an office registered under the law of a State or Territory as a registered office of the body corporate; or (c) in the case of a body corporate that has no such registered office or principal office, the principal place of business of the body corporate in the State or, if it has no place of business in the State, its principal place of business in Australia. 34. Regulations . (1) The Governor in Council may make regulations, whether general or to meet particular cases, with respect to- (a) the conditions for registration of mortgage brokers and the grounds upon which the names of mortgage brokers may be removed from the register; (b) the form of the register and the particulars to be entered in it; (c) the fees to be paid; (d) inspection of the register; (e) all matters required or permitted by this Act to be prescribed where no other means of prescription are provided for; (f) the exemption of any individual person or class or classes of persons from registration; (g) the duties, powers and authorities of the registrar;

Mortgage Brokers Act 1987, No. 55 759 (h) all matters that in his opinion are necessary or convenient for the administration of this Act or to achieve the objects and purposes of this Act. (2) A regulation may impose a penalty not exceeding 4 penalty units for a breach of the regulation.