Mortgages (Secondary Market) Act 1984 (Qld)

790 ANNO TRICESIMO TERTIO ELIZA ET AE SECU ND AE R EGINAE l4 7 ol- 190'4 An Act to facilitate the operation of a secondary mortgage market in Queensland and for related purposes [ASSENTED TO 20TH SEPTEMBER, 1984]

Mortgages (Secondary Market) Act 1984, No. 67 791 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 Mortgages (Secondary Market) Act 1984. 2. Commencement . (1) Section 1 and this section shall commence on the day this Act is assented to for and on behalf of her Majesty. (2) Except as is provided by subsection (1) this Act shall commence on a date to be appointed by Proclamation. 3. Arrangement of Act. This Act is arranged in Parts as follows:- PART I-PRELIMINARY (ss. 1-4); PART II-REGISTRATION PROVISIONS (ss. 5-26); PART III-SECONDARY MORTGAGE MARKET (ss. 27-34); PART IV-PROCURATION FEES (ss. 35-40); PART V-GENERAL PROVISIONS (ss. 41-43). 4. Interpretation . In this Act unless the contrary intention appears- "approved insurer" means the Housing Loans Insurance Corporation established by the Housing Loans InsuranceAct 1965 of the Commonwealth or other insurer approved by the Governor in Council; "banking corporation" means a body corporate that carries on banking business under the authority of the Banking Act1959 of the Commonwealth or that Act as amended or constituted under a law of a State or Territory of the Commonwealth; "Commission" means the National Companies and Securities Commission established by the National Companies andSecurities Commission Act 1979 of the Commonwealth; "Commissioner" means the Commissioner for Corporate Affairs under the Companies (Administration) Act1981; "manager of mortgages" means a person who carries on the business of collecting moneys payable by a mortgagor under a mortgage pursuant to arrangements with the mortgagee under the mortgage; "Minister" means the Minister for Justice and Attorney-General or other Minister of the Crown charged with the administration of this Act and includes any Minister of the Crown for the time being performing the duties of the Minister; "registered finance-mortgage broker" means a person who- (a) whether or not he carries on any other business, carries on or advertises or announces himself or holds himself

792 Mortgages (Secondary Market) Act 1984, No. 67 out as carrying on the business of negotiating on behalf of a client a loan or credit that is secured by means of a mortgage on land or on land and improvements thereon; and (b) is registered as such under this Act; "registered issuer" means a person registered under this Act as an issuer of marketable securities for the purposes of the secondary mortgage market; "registered packager" means a person registered under this Act as a packager of mortgages for the purposes of the secondary mortgage market; "registered trustee" means a person registered under this Act as a trustee for the purposes of the secondary mortgage market; "secondary mortgage market" means the market formed by the buying and selling and offering for sale of promissory notes, bills of exchange, certificates of entitlement or other marketable securities that entitle the holder thereof to the whole or a share of the mortgagee's entitlements under any mortgage or mortgages secured on land or on land and improvements thereon. "value of a mortgage" means the outstanding liability of the mortgagor under a mortgage. PART II-REGISTRATION PROVISIONS 5. The Board. (1) There shall be constituted and maintained a Board consisting of five members of whom one shall be the person who from time to time holds the appointment, Commissioner for Corporate Affairs, or his nominee, who shall be a member ex officio, and of the other members one shall be an officer of the Public Service of Queensland and three shall not be officers of the Public Service of Queensland. (2) The members of the Board, other than the member ex officio, shall be appointed by the Governor in Council upon the recommendation of the Minister, by notification published in the Gazette. (3) Upon each ap p ointment of the members of the Board, other than the member ex officio, and upon a vacancy occurring in the office of a member who was chairman of the Board the Governor in Council shall specify one member to be chairman. 6. Term of appointment . Each member of the Board, other than the member ex officio, shall be appointed for a term of three years and, subject to his remaining qualified for appointment, shall be eligible for re-appointment. 7. Disqualification for appointment . (1) A person who- (a) is an undischarged bankrupt or is taking advantage of the laws relating to bankruptcy; (b) has been convicted in Queensland of an indictable offence (whether on indictment or by summary proceeding) or 2

Mortgages (Secondary Market) Act 1984, No. 67 793 elsewhere than in Queensland in respect of an act or omission that if it occurred in Queensland would have constituted an indictable offence; (c) is a patient within the meaning of the Mental Health Services Act 1974-1984; (d) appears to the Governor in Council to be unfit to be a member of the Board by reason of incapacity or a lack of expertise in the prudent management of finance; or (e) ceases to hold an office or a nomination or to possess a status that pursuant to this Act entitles or qualifies him to be a member of the Board, is not qualified to be appointed as or to continue as a member of the Board. (2) An appointment as a member of the Board of a person who is not qualified to be a member is void. 8. Casual vacancy in Board ' s membership . (1) The office of a member of the Board shall become vacant if the member- (a) dies; (b) resigns his office in writing signed by him and furnished to the Minister; or (c) becomes disqualified to be or to continue as a member of the Committee. (2) Where the disqualification of a member is that referred to in paragraph (d) of section 7 (1), the vacancy in his office shall be taken to have occurred upon notification of the opinion on which the disqualification is founded being given to him personally or by post addressed to his principal place of business or ordinary place of residence last known to the Minister. (3) When a vacancy occurs in the office of an appointed member of the board during the term of office of members the Governor in Council may appoint as prescribed another qualified person to fill the office. (4) A person appointed to fill a casual vacancy in the membership of the Board shall be appointed and shall hold office for the balance of his predecessor's term of office or until he sooner vacates the office and, subject to his remaining qualified for appointment, shall be eligible for re-appointment as a member. 9. Fees and allowances . (1) Subject to subsection (2), a member of the Board shall be entitled to be paid such fees and allowances as the Governor in Council may from time to time determine. (2) Fees or allowances shall not be paid to a member who is an officer of the Public Service of Queensland for attendance at any meeting 26

794 Mortgages (Secondary Market) Act 1984, No. 67 of the Board wholly held during ordinary office working hours of that officer. 10. Proc eed ings of Bo ar d . (1) A quorum of the Board shall be three members. (2) Business before a meeting of the Board shall not be transacted if a quorum is not then present. (3) Business before a meeting of the Board shall be decided by a majority of the members present. Each member is entitled to one vote and in the event of an equality of votes at any meeting the chairman is entitled to a second or casting vote. (4) At every meeting of the Board the chairman shall preside if he is present and in his absence a member appointed by those present shall preside. (5) Except as is prescribed the procedures of a meeting of the Board shall be as determined by the members present. 11. pu members . A member of the Board, other than the member ex officio, may appoint a deputy approved by the Minister to attend meetings of the Board and to discharge his functions during the absence or incapacity of the' member, and while he continues to duly act in accordance with the terms of his appointment a deputy shall be deemed to be a member of the Board in place of the member who so appointed him and, in the case of a deputy of the chairman, to be chairman. 12. Validity of Bo ar d's dete rm inations . No determination of the Board made at a duly constituted meeting of the Board shall be invalidated or prejudiced by reason of the fact that when it was made there existed any defect in the appointment of any member of the Board or a vacancy in the office of any member of the Board. 13. Functions of Board. The functions of the Board are- (a) to investigate and assess the fitness of every applicant for registration under this Act to hold the registration applied for; (b) to recommend to the Minister whether an applicant for registration under this Act is a fit and proper person to hold the registration applied for; (c) to recommend to the Minister upon the fitness of persons registered under this Act to continue to be so registered; (d) to consider and recommend to the Minister upon matters affecting persons operating on the secondary mortgage market; (e) to consider and recommend to the Minister upon matters in respect of operations on the secondary mortgage market

Mortgages (Secondary Market) Act 1984, No. 67 795 generally and in particular such as are referred to it by the Minister; (f) to monitor the activities of each registered trustee as to whether he is acting in accordance with every trust deed to which he is a party and as to whether his duties thereunder are being faithfully discharged; and (g) to monitor the activities on the secondary mortgage market of persons registered under this Act and their compliance with the provisions of this Act. 14. Powers of Commissi o ner etc . ( 1) For the purpose of the discharge of the Board ' s functions or the carrying into effect of the provisions of this Act the Commissioner or a person authorized by him- (a) may at all reasonable hours enter premises where a person registered under this Act is carrying on business for the purposes of which he is so registered and therein inspect all books, documents and records pertaining to or significant for that business , make copies of and take extracts from those books , documents and records and require production by that registered person of records pertaining to or significant for that business in such form as the Commissioner or, as the case may be, the authorized person thinks neces sa ry or desirable in the proper administration of this Act; (b) may inspect books kept by a banker who acts or has acted as banker to a person registered under this Act in respect of the business carried on by that person and for the purposes of which he is so registered and make copies of or take extracts from those books and require production by the banker of such statements of account as the Commissioner or, as the case may be, the authorised person thinks necessary or desirable in the proper administration of this Act; (c) may require a person registered under this Act to appear before him for examination on oath or affirmation and to answer questions put to him, and upon such examination may administer an oath or affirmation to that person. (2) A person registered under this Act and a banker referred to in subsection ( 1) shall provide such assistance to the Commissioner or to a person authorized by him as he requires for the proper administration of this Act. 15. Secretary of Board and assistance . ( 1) There shall be a secretary of the Board. A person may hold the office of secretary of the Board in conjunction with any office he may hold in the Public Service of Queensland. (2) An officer of the Public Service of Queensland may be required and is hereby authorized to perform duties by way of assistance to the Board and the secretary thereof.

796 Mortgages (Secondary Market) Act 1984, No. 67 16. Annual report . (1) As soon as practicable after 30 June in each year the Board shall cause to be prepared and furnished to the Minister a report of its activities for the purposes of this Act during the twelve months ending on 30 June in that year. (2) Within 14 sitting days after he receives the Board's report the Minister shall table the report in the Legislative Assembly. 17. Registration to allow operation on secondary mortgage market. (1) A person who wishes to be- a registered trustee; a registered issuer of marketable securities; a registered packager of mortgages; or a registered finance-mortgage broker shall make application to the Commissioner for the appropriate registration. (2) Upon receipt of an application referred to in subsection (1) and upon payment of the prescribed fee the Commissioner shall cause to be made such investigations as he considers to be necessary into- (a) the financial position and business reputation of the applicant in every case; and (b) where the applicant is a natural person, the character of the applicant; and (c) where the applicant is a body corporate, the character of each of the directors and the secretary of the body corporate and any other person concerned in the management of the body corporate. (3) Upon completion of such investigations as the Commissioner causes to be made the matter of the application and the results of the investigations shall be submitted by the Commissioner to the Board. (4) If the Board, having regard to the interests of the public, is of the opinion that the applicant is a fit and proper person to be registered as applied for, it shall- (a) in the case of an applicant for registration as a registered trustee, registered issuer or registered packager, recommend to the Minister that the approval of the Governor in Council be given to the grant of the registration to the applicant but otherwise it shall recommend to the Minister that the Governor in Council refuse the application; or (b) in the case of an applicant for registration as a registered finance-mortgage broker, approve the grant of the registration to the applicant but otherwise it shall refuse the application. Where the Board recommends that the grant of a registration be approved or, as the case may be, itself approves the grant of a registration it may also recommend or approve the registration be granted subject to conditions specified by it.

Mortgages (Secondary Market) Act 1984, No. 67 797 18. Determination by Governor in Council . (1) Upon receipt by him of the Board's recommendation with respect to an applicant the Minister shall cause the matter of the application and the Board's recommendation and the results of any investigations made by the Commissioner to be submitted to the Governor in Council. (2) The Governor in Council, having regard to the Board's recommendation, may approve the application, with or without conditions, or refuse the application. 19. Issue of certificate of registration . Where the Governor in Council has approved an application or, as the case may be, the Board has approved the grant of a registration as a finance-mortgage broker, the Commissioner shall issue to the applicant a certificate of registration as applied for in accordance with the terms of the approval. 20. Board may hold hearing . (1) For the purposes of its consideration of the matter of an application submitted to it the Board may afford to the applicant an opportunity to appear before it and to make submissions and give.evidence to it in relation to the matter and to that end may cause the secretary to give to the applicant notice of the time and place when and where the applicant may appear before the Board for that purpose. (2) The Board- (a) shall not recommend that an application be refused or that a registration be granted subject to conditions; or (b) shall not refuse an application for registration as a finance- mortgage broker or approve the grant of such a registration subject to conditions, unless it has afforded the applicant an opportunity such as is referred to in subsection (1). 21. Certificate of registration not transferable . (1) It is not competent to the holder of a certificate of registration granted under this Act to assign or convey the certificate to any other person. (2) If the holder of a certificate of registration granted under this Act purports to assign or convey the certificate to any other person the registration shall thereupon cease to be of any force or effect and the holder shall thereupon cease to have the status conferred on him as holder of the certificate. 22. Revocation and suspension of registration . (1) Where- (a) the holder of a certificate of registration, being a natural person, (i) becomes bankrupt or takes advantage of the laws relating to bankruptcy; (ii) is convicted of an offence involving fraud or dishonesty punishable by imprisonment for a period of or exceeding three months; or

798 Mortgages (Secondary Market) Act 1984, No. 67 (iii) is a patient within the meaning of the Mental Health Services Act 1974-1984; (b) the holder of a certificate of registration, being a body corporate, (i) is commenced to be wound up , is under official management or has ceased to carry on business; (ii) is a body corporate in respect of the property of which a receiver or manager has been appointed by a Court or otherwise; or (iii) has entered into a compromise or scheme of arrangement with its creditors; or (c) the holder of a certificate of registration requests the Commissioner to revoke the registration, the Commissioner may, in writing signed by him, revoke the registration. (2) If in a case referred to in paragraph (a) or (b) of subsection (1) the Commissioner considers it desirable to do so, he may, instead of revoking a registration, suspend the registration for a specified period and may at any time remove such a suspension. (3) Subject to section 24, if- (a) the holder of a certificate of registration contravenes or fails to comply with a condition of the registration or a provision of this Act that regulates his conduct as holder of the certificate; (b) the holder of a certificate of registration refuses or fails to comply with a requisition of the Commissioner or a person authorized by the Commissioner directed to the holder pursuant to this Act; or (c) the Commissioner is of opinion that- (i) the holder of a certificate of registration is not a fit and proper person to be so registered; or (ii) where the holder of a certificate of registration is a body corporate, a director or secretary of the body corporate or a person concerned in the management of the body corporate is not a fit and proper person to be a director or secretary of or a person concerned in the management of a body so registered, the Commissioner may submit the matter to the Board for its consideration and the Board may recommend to the Minister that the Minister revoke the registration. (4) If in a case referred to in paragraph (a) or (b) of subsection (3) the Board considers it desirable to do so, it may, instead of recommending revocation of a registration, recommend suspension of the registration for a specified period. (5) The Minister may, having regard to the Board's recommendation in the matter, revoke a registration or suspend a registration for such period as he thinks fit, in either case by writing under his hand.

Mortgages (S econdary Market ) Act 1984, No. 67 799 Notifica tion any revocation or sus p ension of any reg istration § haM , ' en to the holder o f the to of regi stration , personally or by post addres sed to his principal place of business or ordinary place of reside nce last kn own to the Minister. (6) A registration that is suspended shall be deemed revoked for the period of suspension. (7) Where a registration is revoked or while it is deemed to be revoked for a period of suspension the person who held the certificate of registration immediately before the revocation or suspension shall cease to possess the status conferred on him as holder of the certificate. 23. Notifica tion of ch an ge i n gove rn ing body of corpo rate registered person. A bod y corporate that is a registered person under this Act shall notify the Commissioner in writing of an y change in the composition of its governing body or in the identity oits secretary within 14 days after the change occurs. Penalty: $1000. 24. Oppo rtu nity for hearing. The Board shall not recommend that the Minister revoke or suspend a registration under s. 22 (3) unless it has afforded the holder of the certificate of registration an opportunity to appear at a hearing before it and make submissions and give evidence to it in relation to the matter and to that end may cause the secretary to give to the holder concerned notice of the time and place when and where the holder may appear before the Board for that purpose. 25. Term of registration and renewal . (1) A certificate of registration shall, subject to subsection (4), be in force for a period of 12 months from the date of its issue. (2) The holder of a certificate of registration may, before the certificate expires, apply for the renewal of the certificate for the next period of 12 months. (3) An application for renewal of a certificate of registration shall be made to the Commissioner and shall be accompanied by the prescribed fee. (4) Where an application for renewal of a certificate of registration has been duly made and the prescribed fee has been paid the certificate shall not expire until the application has been determined. (5) The Commissioner shall refer every application for renewal of a certificate of registration to the Board and, if the Board approves the renewal, the Commissioner shall issue a fresh certificate of registration to the applicant but, if the Board does not so approve, the Commissioner shall refuse the application and refund to the applicant the prescribed fee or, as the Commissioner thinks fit, a part of that fee having regard to the work performed by the Commissioner in relation to the application. 26. Register of registered persons. (1) The Commissioner shall keep in such form as he thinks fit a register in which he shall cause to be

800 Mortgages (Secondary Market) Act 1984, No. 67 registered the names of all persons registered under this Act and the address or addresses in Queensland at which it is proposed that the business for the purposes of which such persons are registered will be carried on and any conditions to which the registration is subject. (2) The Commissioner 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 Commissioner 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 Commissioner shall be accepted in all proceedings as evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained therein. PART III-SECONDARY MORTGAGE MARKET 27. Authorized trustee i nvestment . (1) A marketable security to which this subsection applies issued by a registered issuer of marketable securities is a security in which a trustee may invest trust funds. (2) Subsection ( 1) applies to a marketable security if- (a) the security is issued pursuant to a trust deed made by a registered issuer, being a trust deed under which a registered trustee is the trustee and which is duly approved by the Commissioner; (b) the security confers on the holder thereof an entitlement specified in the trust deed and, in a case where, pursuant to the Companies (Queensland) Code or a corresponding law in force in any State or Territory of the Commonwealth, a statement ( deemed to be a prospectus) is required in addition to a trust deed , specified in a statement registered or deemed to have been registered by the Commission in accordance with the provisions of that Code; (c) the security confers on the holder thereof an entitlement in respect of moneys payable pursuant to first legal mortgages of land or land and improvements thereon- that are held by the registered trustee referred to in paragraph ( a) aforesaid as mortgagee; that are provided for by instruments of mortgage in the possession and control of the registered trustee; and in respect of which the mortgagee is indemnified by an approved insurer against default by each mortgagor in payment of the mortgagor ' s liability thereunder to the extent of 100 per centum of that liability; (d) at the time each mortgage is lodged with the registered trustee for the purposes of the trust deed there is delivered to the registered trustee by the registered issuer a valuation,

Mortgages (Secondary Market) Act 1984, No. 67 801 acceptable to the trustee, of the property on which the mortgage is secured, being a valuation made within six months or such other time as is acceptable to the trustee before the date of such delivery and made by a registered valuer within the meaning of the Valuers Registration Act 1965-1984, a member of the Real Estate Institute of Queensland or a valuer acceptable to the Commissioner; and (e) the provisions of this Act that prescribe with respect to such securities are complied with. (3) A trust deed shall not be approved by the Commissioner for the purposes of subsection (2) unless it contains the following covenants expressed to his satisfaction:- (a) a covenant that- where the proportion borne by the value of the mortgages lodged with the registered trustee for the purposes of the trust deed to the value of the property on which the mortgages are secured is a percentage specified in the first column of the following Table the registered issuer shall, at the time he issues any marketable securities pursuant to the trust deed and at all times thereafter, be assured of liquidity not less than the percentages specified in the second column of the following Table of the value of the mortgages and in the form specified in that column: TABLE Does not exceed 66.66- 10 per centum in the form of cash per centum or lines of credit with or a guarantee given by a banking corporation, or partly in one and partly in another of such forms. Exceeds 66.66 per- 12.5 per centum in the form of centum but does cash or lines of credit with or a not exceed 75 per guarantee given by a banking centum corporation, or partly in one and partly in another of such forms. (b) a covenant that the proportion borne by the value of the mortgages lodged with the registered trustee for the purposes of the trust deed to the value of the property on which the mortgages are secured shall not exceed 75 per centum; (c) a covenant that the face value of all marketable securities issued pursuant to the trust deed shall not exceed the aggregate of the principal sums secured by the mortgages lodged with the registered trustee for the purposes of the trust deed; and the amount of all sums of money held by or payable to the registered trustee for the purposes of the trust deed; and

802 Mortgages (Secondary Market) Act 1984, No. 67 the face value of investments held by the registered trustee for the purposes of the trust deed. 28. Availability of prescribed liquidity. (1) A registered issuer shall keep the liquidity required of him by a trust deed in accordance with section 27 ( 3) available for the purpose only of honouring his liabilities under marketable securities issued by him pursuant to the trust deed. (2) Where such liquidity is in the form of cash , the registered issuer shall, until it is required for the purpose referred to in subsection (1), keep it invested in a manner specified in paragraph ( e) or (f ) of section 21 (1) of the T rusts Act 1973-1981. 29. Ce rt i fica tion of secur ities by registered trustee. A marketable security to which section 27 (1) applies shall not be delivered to its purchaser from the registered issuer who issues it unless it is duly certified as prescribed by the regulations by the registered trustee under the trust deed pursuant to which the security is issued. 30. Registered trust ee s to account for stamp duty. ( 1) A registered trustee shall , no later than the twenty - first day of each calendar month- (a) lodge with the Commissioner of Stamp Duties a return in the prescribed form and manner of all mortgages under which he has become mortgagee within the last preceding calendar month and in respect of which there exists a trust deed such as is referred to in section 27 (2) other than such mortgages that have been assigned to him by conveyance or transfer in respect of which stamp duty has been duly accounted for under the Stamp Act1894-1984; and (b) pay to the Commissioner of Stamp Duties in respect of the mortgages included in the return the stamp duty chargeable on the return under this Act. Where within a particular calendar month a registered trustee has not become mo rtgag ee under any mortgages of which he is required by subsection ( 1) to lodge a return he shall lodge with the Commissioner of Stamp Duties a "NIL" return. (2) A registered trustee who fails to lodge a return under subsection (1) or who lodges under that subsection a return that is false in a material particular commits an offence against this Act and is liable to a penalty not exceeding $ 500 and in addition is liable to pay an amount equivalent to twice the duty that would have been payable pursuant to this Act had a return been lodged in accordance with that subsection. (3) A registered trustee who fails to pay the stamp duty chargeable on a return lodged by him under subsection ( 1) commits an offence against this Act and is liable to a penalty not exceeding $ 500 and in addition is liable to pay an amount equivalent to twice the duty with which the return is chargeable pursuant to this Act.

Mortgages (Secondary Market) Act 1984, No. 67 803 31. Stamp duty chargeable . (1) The stamp duty chargeable on a return lodged under section 30 (1) shall be $5.00 in respect of each mortgage to which the return relates. Duty chargeable under this subsection on a return is additional to duty with which the mortgages to which the return relates are chargeable under the heading "Mortgage, Bond, Debenture, and Covenant" in the First Schedule to the Stamp Act1894-1984. (2) A conveyance or transfer of a marketable security to which section 27 (1) applies shall be exempt from stamp duty under paragraph (3) under the heading "Conveyance or Transfer" in the First Schedule to the Stamp Act1894-1984. (3) The provisions of section 31 D of the Stamp Act1894-1984 do not apply in respect of sales and purchases of marketable securities to which section 27 (1) applies. (4) A trust deed made for the'purposes of this Act is exempt from the payment of stamp duty under the Stamp Act1894-1984 to the extent that it is so made. Upon production to him of a trust deed claimed to be made for the purposes of this Act the Commissioner of Stamp Duties, if he is satisfied that it is so made, shall endorse the instrument to the effect that it is exempt from the payment of stamp duty under the Stamp Act1894-1984 to the extent that it is so made. 32. Certain provisions of StampAct to apply for purposes of this Act. Where any provision of the Stamp Act1894-1984 that confers a power or authority on the Commissioner of Stamp Duties, an inspector appointed under the Stamp Act1894 as amended from time to time or any other person is restricted in its operation to duty chargeable under the Stamp Act1894-1984 that provision shall operate and apply for the purposes of this Act as if the stamp duty chargeable under this Act were duty chargeable under that Act. 33. Duty a debt to Crown. Any stamp duty chargeable under this Act and any penalty imposed in respect of an instrument chargeable with duty under this Act shall constitute a debt due and owing to Her Majesty by the person required by this Act to pay the duty and may be recovered by the Commissioner of Stamp Duties on behalf of the Crown by action in a court of competent jurisdiction in his official name. 34. Perso n may not manage ce rta in mortgages unless registered. A person- (a) shall not be a manager of mortgages; or (b) shall not advertise or announce himself or hold himself out as being a manager of mortgages, pursuant to arrangements with a registered trustee for the purposes of a trust deed pursuant to which there are or are to be issued marketable

804 Mortgages (Secondary Market) Act 1984, No. 67 securities to which section 27 (1) applies or will apply unless he is a registered issuer or a registered packager. Penalty: $ 1 000. PART IV-PROCURATION FEES 35. Payment of procuration fees . Notwithstanding the provisions of section 14 of the Money Lenders Act 1916-1979 a registered finance- mortgage broker is authorised to demand, receive and accept in accordance with this Act a fee, commission or other amount in respect of negotiating a loan or credit on behalf of a client. 36. Restriction on right to procuration fee. (1) A registered finance- mortgage broker shall not demand, receive or accept a fee, commission or other amount in respect of negotiating a loan or credit on behalf of a client unless- (a) his engagement or appointment to act as a finance-mortgage broker in respect of the negotiation is in writing signed by the person charged or to be charged with the payment of the fee, commission or other amount; (b) the written engagement or appointment is held by him before he has done everything required of him under the terms of his engagement or appointment; and (c) the written engagement or appointment contains particulars of the amount of the loan or credit to be obtained, the maximum rate of interest and other charges to be paid in respect of the loan or credit and the terms of the loan or credit. Penalty: $500. (2) In respect of each transaction consisting in the negotiation of a loan or credit on behalf of a client there shall be but one fee, commission or other amount, authorized by section 35, payable to a registered finance-mortgage broker. Where two or more registered finance-mortgage brokers engage in the one transaction the fee, commission or other amount so payable shall be shared by them. (3) A registered finance-mortgage broker shall not demand, receive or accept in respect of negotiating a loan or credit on behalf of a client a fee, commission or other amount, authorized by section 35, that exceeds an amount equivalent to one per centum (or other percentage prescribed by the regulations) of the amount of loan or credit for which he is engaged or appointed to negotiate. Penalty: $ 500. (4) A registered finance-mortgage broker shall not retain in respect of negotiating a loan or credit on behalf of a client a fee, commission or other amount, authorized by section 35, that exceeds an amount

:Mortgages (Secondary Market) Act 1984, No. 67 805 equivalent to one per centum (or other percentage prescribed by the regulations) of the amount of loan or credit obtained by the negotiation. Penalty: $500. 37. Expenses recoverable by broker. In addition to any fee, commission or other amount that a registered finance-mortgage broker may retain under section 36 he is authorized to charge and recover from his client on behalf of whom he negotiates a loan or credit costs, fees and charges on account of disbursements necessarily made by him for the purpose of negotiating and securing the loan or credit. 38. Fees etc. paid in advance into trust accounts . (1) Any fee, commission or other amount paid to a registered finance-mortgage broker, in respect of negotiating a loan or credit, before the loan or credit has been secured shall be paid by the registered finance-mortgage broker into a separate trust account maintained by him for the receipt of moneys of that description. (2) A registered finance-mortgage broker shall not withdraw moneys paid by him into a trust account pursuant to subsection (1) in respect of the negotiation of a particular loan or credit until- (a) the loan or credit has been secured; or (b) the expiration of a period agreed between the broker and the client from the date of the engagement or appointment to negotiate the loan or credit if the loan or credit has not been secured, whichever first occurs or unless subsection (5) applies to the case. (3) Moneys withdrawn from a trust account upon an event referred to in paragraph (a) of subsection (2) shall be retained by the registered finance-mortgage broker. Moneys withdrawn from a trust account upon the event referred to in paragraph (b) of subsection (2) shall be refunded to the client by whom they were paid. (4) For the purposes of this section a loan or credit shall be deemed not to have been secured until- (a) the amount of the loan has been appropriated to the use of the borrower or, as the case may be, the credit has been created for the use of the borrower; and (b) the registered finance-mortgage broker has a notification from the lender that the loan or credit is available upon the terms on which it was sought to be negotiated. (5) Where moneys have been paid into a trust account pursuant to subsection (1) and the client withdraws the engagement or appointment of the registered finance-mortgage broker before the loan or credit has

806 Mortgages (Secondary Market) Act 1984, No. 67 been secured, the moneys shall be withdrawn from the trust account and applied- (a) where the en, .meat or appointment is withdrawn before the broker h.5 entered upon the negotiations in question, by way of refund to the client; or (b) where the en gag ement or appointment is withdrawn after the broker has entered upon the negotiations in question, partly by way of recompense to the broker for the work performed by him and partly by way of refund to the client. . R etention of fds^ cat to or credit for which broker e registered finance-mortgage broker shall not retain any fee, c-F assion or other amount in respect of his negotiating on behalf of a client a loan or credit that- (a) is for an amount less than the amount specified in his en, dent or ap po intment; (b) is .'- a rate of interest or for a charge greater than the rate or charge specified in his engagement or appointment; or (c) is for a term less than the term specified in his engagement or appointment. Penalty: $ 500. t order ®. - stem :-` f .ac--mor'_ ly obtained. (1) Where a ;n convicted -"lmanding , : - iv' - _- cr ccepting a fee, commission or other am ount i n b rea ch of sec tion 36 (1); (b) demanding , receiving , accepting or retaining a fee, co mmission or other am ount in breach of section 36 (3) or (4); or (c) re tai ning a f ee, co mmission or other a m ount in breach of ion 39, the court by which he is convicted r--y, in addition to imposin penalty, order the registered finan - crt-_ -. , 1: roker to refund, within a timespecified by the court, to the pers :)n from whom he rived it the amount to which the conviction relam ;s together with interest at a rate ordered by the court but not exceeding eight per ntum per annum from the time the breach in question commenced until the time the refund is made. (2) If a refund order made by a court under subsection (1) is not complied with within the time specified by the court the person in whose favour the order was made may register a copy of the order in a court having jurisdiction in actions for debt that includes the amount to be refunded (disregarding the interest payable) and thereupon the refund order shall be deemed to an order for payment of money to that person duly made by the court in which it is registered and may be enforced accordingly.

Mortgages (Secondary Market) Act 1984, No. 67 807 PART V-GENERAL PROVISIONS 41. Regu lations . The Governor in Council may make regulations not inconsistent with this Act with res pec t to- (a) applications for reg istration under this Act and the parti c ulars to be disclosed therein; (b) prescribing forms for the purpo ses of this Act and requiring persons to use those forms for the prescribed pu rpo se; (c) prescribing particular provisions or standard forms for mo rtga ges for the purpose of operating on the secon dary mortgage market and req uirin g the use of such provisions or, as the case may be , s tandar d forms; (d) _ p rescri bing parti cular covenants or stan dar d forms for tru st deeds required by this Act to be approved by the Commissioner and requiring the use of such covenants or, as the case may be, stan dar d forms; (e) requiring valuers to use a form ' of valuation prescribed by the regulations or to value under h eadings pre scribed by the regulations when valuing for the purposes of the seco n dary mortgage market pro pert y on which a mo rtga ge is sec ured; (f) prescribing a form for and the requirements of a certification by a registered trustee for the pu rpo ses of this Act of marketable securities issued pursuant to a trust d ; (g) pr escr ibing * fees to be paid under this Act and the p urpo ses for which f ees p rescribed to be pai d; (h) prescribing the functions , duties and wers of the Board or the Commissioner in the cou rse of giving effect to this Act; (i) p resc ribing requirements and criteria to be met by persons seeking to be registered under this Act or to be o bse rved by perso ns r egi stered under this Act in their operations on or in connexion with the secondary mo rtgage market; (j) prescrib ing the rights an d obligations of mo rtgag ors an d mortgagees con seq uent upon the committal of mo rtgag es to the secon dary mo rtgag e market; (k) r egu lating the conduct of operations on or in connexion with the seco n dary mo rtga ge market; (1) prescribing all matters that are by this Act req u i red ' or permitted to be prescri bed by reg ulation or are by this Act required or permitted to be prescri and the manner of prescription is not provided for; (m) prescribing penal ties for b rea ches of the regul ations not ex ceedi ng in any case $500; (n) providing for all matters and things that i n the opinion of the Governor in Council are n ecessary or convenient for the proper administration of this Act or to give effect to the provisions of this Act.

808 Mortgages (Secondary Market) Act 1984, No. 67 42. Penalty provision. (1) A person who contravenes or fails to comply with a provision of this Act commits an offence against this Act and, in the absence of another penalty expressly prescribed, is liable to a penalty of $500. (2) Proceedings with respect of an offence against this Act shall be taken in a summary manner under the Justices Act1886-1982. 43. Evidentiary provision. The description in a complaint of a defendant named therein as a registered person of any description under this Act shall be sufficient proof that the defendant is a registered person of that description until the contrary is proved.