Untitled document
Consumer Acts Amendment Act 2011
No. 36 of 2011
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Estate Agents Act 1980
3Definitions
4Section 55 substituted and new section 55A inserted
55Restriction on agent purchasing property
55AProhibition on charging or retaining of commission
Part 3—Owners Corporations Act 2006
5Section 11 substituted
11Management of owners corporation and power to delegate
6Audit of accounts of owners corporations
7Proxies
8Section 101 substituted
101Functions and powers of committee
9Address of absent owners
10New section 138A inserted
138APower to make rules regarding proxies
11Who may apply to VCAT in relation to a dispute?
12What orders can VCAT make?
13Heading to section 205 amended and Schedule 2 amended
14Statute law revision
Part 4—Fair Trading Act 1999
15Functions and powers of the Director
16Conduct by officers, employees or agents
17Defences
18Section 160F substituted
160FJurisdiction of courts and the Tribunal
Part 5—Conveyancers Act 2006
19What is conveyancing work?
20Approval of auditors
21Review of exclusion for sale of businesses
Part 6—Consumer Affairs Legislation Amendment (Reform) Act 2010
22Commencement
23Amendments to New Part 2D to be inserted into Fair Trading
Act 199924Heading to section 4 amended
25Section 4 amended
21ATransitional provision for Part 2D
26Owners Corporations Act 2006
27Statute law revision
Part 7—Amendment of Certain Commencement Arrangements
28Associations Incorporation Amendment Act 2009
29Associations Incorporation Amendment Act 2010
30Personal Property Securities (Statute Law Revision and Implementation) Act 2010
Part 8—Repeals and Consequential and Other Amendments
Division 1—Repeal of Companies (Administration) Act 1981
31Repeal of Companies (Administration) Act 1981
Division 2—Consequential amendments for repeal of Companies (Administration) Act 1981
32Anglican Church of Australia Constitution Act 1960
33Associations Incorporation Act 1981
34Health Services Act 1988
Division 3—Amendments of other Acts
35Consumer Affairs Legislation Amendment Act 2010
36Evidence (Miscellaneous Provisions) Act 1958
37Legal Profession Act 2004
38Residential Tenancies Amendment Act 2010
39Retail Leases Act 2003
Division 4—Repeal of amending Act
40Repeal of amending Act
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Endnotes
Consumer Acts Amendment Act 2011
No. 36 of 2011
[Assented to 23 August 2011]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to amend the Estate Agents Act 1980 in relation to estate agents purchasing real estate or businesses;
(b)to amend the Owners Corporations Act 2006 in relation to delegations, proxies and service of notices;
(c)to amend the Fair Trading Act 1999—
(i)in relation to conduct by officers, employees and agents of a body corporate;
(ii)to clarify the jurisdiction of the courts and VCAT in relation to matters under the Australian Consumer Law (Victoria);
(d)to amend the Conveyancers Act 2006 to remove a restriction on work involving the sale of businesses;
(e)to amend the Consumer Affairs Legislation Amendment (Reform) Act 2010 in relation to the disposal of uncollected goods;
(f)to amend the commencement arrangements in the Associations Incorporation Amendment Act 2009, the Associations Incorporation Amendment Act 2010, the Personal Property Securities (Statute Law Revision and Implementation) Act 2010 and the Consumer Affairs Legislation Amendment (Reform) Act 2010;
(g)to repeal the Companies (Administration) Act 1981.
2Commencement
(1)This Act (except sections 19, 27 and 35(3)) comes into operation on the day after the day on which it receives the Royal Assent.
(2)Section 19 comes into operation on 1 July 2012.
(3)Sections 27 and 35(3) are taken to have come into operation on 31 October 2010.
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Part 2—Estate Agents Act 1980
3Definitions
In section 4(1) of the Estate Agents Act 1980, in paragraph (a) of the definition of approved auditor, for "National Institute of Accountants" substitute "Institute of Public Accountants".
4Section 55 substituted and new section 55A inserted
For section 55 of the Estate Agents Act 1980 substitute—
55Restriction on agent purchasing property"
(1)An estate agent must not obtain a beneficial interest in any real estate or business that the estate agent has been commissioned by any principal to sell.
Penalty:240 penalty units or imprisonment for 2 years, or both.
(2)An agent's representative employed by an estate agent must not obtain a beneficial interest in any real estate or business that the estate agent has been commissioned by any principal to sell.
Penalty:240 penalty units or imprisonment for 2 years, or both.
(3)Without limiting subsections (1) or (2), a person obtains a beneficial interest if any of the following circumstances arise—
(a)the person or an associate of the person—
(i)purchases the real estate or business; or
(ii)holds an option to purchase the real estate or business;
(b)a proprietary corporation of which the person or an associate of the person is a member—
(i)purchases the real estate or business; or
(ii)holds an option to purchase the real estate or business;
(c)a corporation over which the person (either individually or jointly with associates) or an associate of the person can exercise control—
(i)purchases the real estate or business; or
(ii)holds an option to purchase the real estate or business;
(d)a corporation of which the person or an associate of the person is an executive officer—
(i)purchases the real estate or business; or
(ii)holds an option to purchase the real estate or business;
(e)if the person is a corporation, an executive officer of that corporation or an associate of the executive officer—
(i)purchases the real estate or business; or
(ii)holds an option to purchase the real estate or business;
(f)the trustee of a discretionary trust of which the person or an associate of the person is a beneficiary purchases, or obtains a beneficial interest in, the real estate or business;
(g)a member of a firm or partnership of which the person or an associate of the person is also a member purchases the real estate or business;
(h)in the case of real estate—
(i)the person or an associate of the person has, directly or indirectly, a right to participate in the income or profits of a business carried on for profit or gain; and
(ii)another person carrying on that business obtains a beneficial interest in the real estate;
(i)in the case of a business (Business 1)—
(i)the person or an associate of the person has, directly or indirectly, a right to participate in the income or profits of another business (Business 2) carried on for profit or gain; and
(ii)another person carrying on Business 2 obtains a beneficial interest in Business 1.
(4)A person does not contravene subsection (1) or (2) if—
(a)the person—
(i)before a contract for the sale of the real estate or business is entered into, obtains the principal's written acknowledgment in the form approved by the Director that the principal—
(A)is aware that the person is interested in obtaining a beneficial interest in the real estate or business; and
(B)consents to the person obtaining the interest; and
(ii)acts fairly and honestly in relation to the transaction; and
(b)no commission or other reward is payable in relation to the transaction; and
(c)the principal is in substantially as good a position as the principal would be if the real estate or business were sold at fair market value.
(5)In this section—
associate means—
(a)an employee of the estate agent; or
(b)a spouse, domestic partner, parent, brother, sister or child of the estate agent or agent's representative; or
(c)a child of the spouse or domestic partner of the estate agent or agent's representative;
control has the meaning given by section 50AA of the Corporations Act;
executive officer means any person, howsoever described and whether or not the person is a director of the corporation, who is concerned, or takes part, in the management of the corporation;
obtain includes being in any way concerned in obtaining.
55AProhibition on charging or retaining of commission
(1)This section applies if an estate agent is found guilty of an offence against section 55(1) in relation to the sale of real estate or a business that the estate agent is commissioned by a principal to sell.
(2)The estate agent must not charge commission to, and must repay commission paid by, the principal in respect of the sale of that real estate or business.".
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Part 3—Owners Corporations Act 2006
5Section 11 substituted
For section 11 of the Owners Corporations Act 2006 substitute—
11Management of owners corporation and power to delegate"
(1)An owners corporation is to be managed by or under the direction of the lot owners.
(2)Subject to subsection (3), an owners corporation may, by instrument or by resolution at a general meeting, delegate any power or function of the owners corporation to—
(a)the committee of the owners corporation;
(b)the manager of the owners corporation;
(c)a lot owner;
(d)the chairperson of the owners corporation;
(e)the secretary of the owners corporation;
(f)an employee of the owners corporation.
(3)An owners corporation must not delegate any of the following powers or functions under subsection (2)—
(a)a power or function that requires a unanimous resolution, a special resolution or a resolution at a general meeting;
(b)the power of delegation under that subsection.
Note
See section 82.
(4)A resolution under subsection (2) is only effective if it is recorded in the minutes of the general meeting.
(5)If no delegation is in force under subsection (2)(a), the committee of the owners corporation is delegated all powers and functions that may be exercised by the owners corporation, except for—
(a)those powers and functions set out in subsection (3); and
(b)those matters which must be determined at a general meeting under section 82.
(6)Subsection (1) does not give rise to any fiduciary duties or directors' duties on the part of lot owners.
Note
See section 5 for duties of an owners corporation.".
6Audit of accounts of owners corporations
In section 35(1)(c) and (2)(c) of the Owners Corporations Act 2006, for "National Institute of Accountants" substitute "Institute of Public Accountants".
7Proxies
After section 87(1) of the Owners Corporations Act 2006 insert—
"Note
See section 138A.".
8Section 101 substituted
For section 101 of the Owners Corporations Act 2006 substitute—
101Functions and powers of committee"
Subject to the rules of the owners corporation, a committee has all the powers and functions that are delegated to it by or under section 11.
Note
Powers and functions that require a unanimous resolution, a special resolution or a resolution at a general meeting of the owners corporation cannot be delegated under section 11.".
9Address of absent owners
(1)In section 135 of the Owners Corporations Act 2006, after "address" insert "in Australia".
(2)At the end of section 135 of the Owners Corporations Act 2006 insert—
"(2)If an address in Australia has not been nominated under subsection (1), service may be effected—
(a)by posting the notice to the last known address of the lot owner in Australia; or
(b)if an address under paragraph (a) is not known or if a notice sent to that address is returned, in any other manner VCAT considers appropriate.
Note
See section 148. See also section 113(2) of the Transfer of Land Act 1958.".
10New section 138A inserted
After section 138 of the Owners Corporations Act 2006 insert—
138APower to make rules regarding proxies"
(1)Subject to subsection (2), an owners corporation may make a rule requiring that a majority of the members of the committee of the owners corporation consent to a proxy of a member (authorised under section 87) voting at committee meetings.
(2)A rule made under subsection (1) only applies if the proxy-holder has not been elected or co-opted as a member of the committee.
(3)If a rule under subsection (1) is in effect, the consent must not be unreasonably withheld.".
11Who may apply to VCAT in relation to a dispute?
After section 163(1) of the Owners Corporations Act 2006 insert—
"(1A)A lot owner may apply to VCAT on behalf of an owners corporation to resolve an owners corporation dispute.
Note
This subsection clarifies that the rule in Foss v Harbottle (1843) 67 ER 189 does not apply to owners corporation disputes.".
12What orders can VCAT make?
After section 165(1)(b) of the Owners Corporations Act 2006 insert—
"(ba)an order authorising a lot owner to institute, prosecute, defend or discontinue specified proceedings on behalf of the owners corporation;".
13Heading to section 205 amended and Schedule 2 amended
(1)In the heading to section 205 of the Owners Corporations Act 2006, after "Transitional" insert "and savings".
(2)In the heading to Schedule 2 to the Owners Corporations Act 2006, after "TRANSITIONAL" insert "AND SAVINGS".
(3)After clause 11 of Schedule 2 to the Owners Corporations Act 2006 insert—
12Saving of certain delegations"
A delegation under section 11 is not invalid merely because of the commencement of section 5 of the Consumer Acts Amendment Act 2011.".
14Statute law revision
In section 6(a)(ii) of the Owners Corporations Act 2006, for "that Act;" substitute "that Act; or".
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Part 4—Fair Trading Act 1999
15Functions and powers of the Director
After section 100(1)(i) of the Fair Trading Act 1999 insert—
"(ia)any power that, before the repeal of the Companies (Administration) Act 1981, could be exercised by the Commissioner for Corporate Affairs under that or any other Act, including the power to commence proceedings under section 10 of that Act;".
16Conduct by officers, employees or agents
For section 144(1), (2), (3) and (4) of the Fair Trading Act 1999 substitute—
"(1)If, in a proceeding under this Act in respect of conduct that is engaged in by a body corporate and to which this Act applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show—
(a)that an officer, employee or agent of the body corporate engaged in that conduct within the scope of the actual or apparent authority of the officer, employee or agent; and
(b)that the officer, employee or agent had that state of mind.
(2)The following conduct engaged in on behalf of a body corporate is also taken, for the purposes of this Act, to have been engaged in by the body corporate—
(a)conduct by an officer, employee or agent of the body corporate within the scope of the actual or apparent authority of the officer, employee or agent; or
(b)conduct by any other person—
(i)at the direction of an officer, employee or agent of the body corporate; or
(ii)with the consent or agreement (whether express or implied) of such an officer, employee or agent—
if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, employee or agent.
(3)If, in a proceeding under this Act in respect of conduct that is engaged in by a person (the principal) other than a body corporate and to which this Act applies, it is necessary to establish the state of mind of the principal, it is sufficient to show—
(a)that an employee or agent of the principal engaged in that conduct within the scope of the actual or apparent authority or the employee or agent; and
(b)that the employee or agent had that state of mind.
(4)The following conduct engaged in on behalf of a person (the principal) other than a body corporate is also taken, for the purposes of this Act, to have been engaged in by the principal—
(a)conduct by an employee or agent of the principal within the scope of the actual or apparent authority of the employee or agent; or
(b)conduct by any other person—
(i)at the direction of an employee or agent of the principal; or
(ii)with the consent or agreement (whether express or implied) of such an employee or agent—
if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent.
(4A)If—
(a)a person other than a body corporate is convicted of an offence; and
(b)subsection (3) or (4) applied in relation to the conviction on the basis that the person was the principal mentioned in that subsection; and
(c)the person would not have been convicted of the offence if that subsection had not been enacted—
the person is not liable to be punished by imprisonment for that offence.".
17Defences
In section 155(2)(b) of the Fair Trading Act 1999, for "or an" substitute ", employee or".
18Section 160F substituted
For section 160F of the Fair Trading Act 1999 substitute—
160FJurisdiction of courts and the Tribunal"
Subject to section 160E, the Tribunal or any court of competent jurisdiction may hear and determine a cause of action arising under any provision of the Australian Consumer Law (Victoria).".
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Part 5—Conveyancers Act 2006
19What is conveyancing work?
(1)After section 4(2) of the Conveyancers Act 2006 insert—
"(2A)In this Act, conveyancing work also means legal work connected with the sale of a business, including the sale of goodwill and stock-in-trade and the transfer of any business licence.".
(2)Section 4(3)(b) of the Conveyancers Act 2006 is repealed.
20Approval of auditors
In sections 83(1)(a)(i) and 90(2) of the Conveyancers Act 2006, for "National Institute of Accountants" substitute "Institute of Public Accountants".
21Review of exclusion for sale of businesses
Section 189 of the Conveyancers Act 2006 is repealed.
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Part 6—Consumer Affairs Legislation Amendment (Reform) Act 2010
22Commencement
In section 2(4) of the Consumer Affairs Legislation Amendment (Reform) Act 2010, for "1 September 2011" substitute "30 June 2012".
23Amendments to New Part 2D to be inserted into Fair Trading Act 1999
(1)In section 3 of the Consumer Affairs Legislation Amendment (Reform) Act 2010, in proposed section 32ZP of the Fair Trading Act 1999—
(a)in paragraph (a) of the definition of high value, for "$200" substitute "$1000";
(b)for the definition of low value substitute—
"low value, for goods, means the goods are of a value less than—
(a)in the case of a motor vehicle, $1000 or, if another value is prescribed by the regulations, that other value; or
(b)in any other case, $200 or, if another value is prescribed by the regulations, that other value;".
(2)In section 3 of the Consumer Affairs Legislation Amendment (Reform) Act 2010, for proposed section 32ZY(3) of the Fair Trading Act 1999 substitute—
"(3)Goods must not be disposed of under this section otherwise than—
(a)by way of public auction that is either—
(i)advertised at least 7 days in advance; or
(ii)held over a period of at least 7 days; or
(b)subject to subsection (4), by way of private sale.
(4)Goods may only be disposed of under subsection (3)(b) if—
(a)notice has been given in accordance with subsection (1); and
(b)the receiver has a reasonable belief that the best price could only be achieved by private sale; and
(c)the receiver takes reasonable care to ensure that the goods are sold for the best price that can reasonably be obtained, having regard to the circumstances at the time the goods are sold.".
24Heading to section 4 amended
In the heading to section 4 of the Consumer Affairs Legislation Amendment (Reform) Act 2010, for "clause 21" substitute "clauses 21 and 21A".
25Section 4 amended
In section 4 of the Consumer Affairs Legislation Amendment (Reform) Act 2010, after proposed clause 21 of Schedule 3 to the Fair Trading Act 1999 insert—
21ATransitional provision for Part 2D"
(1)For the purposes of section 32ZZ, a certificate issued under section 24 of the Chattel Securities Act 1987 is taken to be a written search result under section 170(2)(b) of the Personal Property Securities Act 2009 of the Commonwealth.
(2)Subclause (1) expires on the commencement of section 5 of the Personal Property Securities (Statute Law Revision and Implementation) Act 2010.".
26Owners Corporations Act 2006
Section 77 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 is repealed.
27Statute law revision
In section 16(1) of the Consumer Affairs Legislation Amendment (Reform) Act 2010 for "Insert the following heading to Part II of the Goods Act 1958" substitute "For the heading to Part II of the Goods Act 1958 substitute".
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Part 7—Amendment of Certain Commencement Arrangements
28Associations Incorporation Amendment Act 2009
In section 2(4) of the Associations Incorporation Amendment Act 2009, for "1 December 2011" substitute "1 July 2012".
29Associations Incorporation Amendment Act 2010
In section 2(2) of the Associations Incorporation Amendment Act 2010, for "1 December 2011" substitute "1 July 2012".
30Personal Property Securities (Statute Law Revision and Implementation) Act 2010
In section 2 of the Personal Property Securities (Statute Law Revision and Implementation) Act 2010—
(a)in subsection (2), for "Subject to subsection (3), the" substitute "The";
(b)subsection (3) is repealed.
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Part 8—Repeals and Consequential and Other Amendments
Division 1—Repeal of Companies (Administration) Act 1981
31Repeal of Companies (Administration) Act 1981
The Companies (Administration) Act 1981 is repealed.
Division 2—Consequential amendments for repeal of Companies (Administration) Act 1981
32Anglican Church of Australia Constitution Act 1960
In section 7 of the Anglican Church of Australia Constitution Act 1960, for "shall be deposited with the Commissioner for Corporate Affairs of the State of Victoria. Every such copy and statement shall be certified to by the Primate or the person for the time being exercising the authority of the Primate under the Constitution and every copy and statement so certified and registered" substitute "may be certified by the Primate or the person for the time being exercising the authority of the Primate under the Constitution and every copy and statement so certified".
33Associations Incorporation Act 1981
In section 11(1)(b) of the Associations Incorporation Act 1981 omit "Commissioner for Corporate Affairs,".
34Health Services Act 1988
In section 62(3) and (4)(b)(ii) of the Health Services Act 1988, for "the Commissioner for Corporate Affairs" substitute "ASIC within the meaning of the ASIC Act".
Division 3—Amendments of other Acts
35Consumer Affairs Legislation Amendment Act 2010
(1)Section 33 of the Consumer Affairs Legislation Amendment Act 2010 is repealed.
(2)In section 73(2)(c) of the Consumer Affairs Legislation Amendment Act 2010, after proposed section 89A(4)(i) of the Sex Work Act 1994 insert—
"(ia)subsection (3)(ia) is 1 penalty unit;".
(3)In item 7 of the Schedule to the Consumer Affairs Legislation Amendment Act 2010, for "Insert the following heading to Part 2" substitute "For the heading to Part 2 substitute".
36Evidence (Miscellaneous Provisions) Act 1958
In section 107A(1)(v) of the Evidence (Miscellaneous Provisions) Act 1958, for "National Institute of Accountants" substitute "Institute of Public Accountants".
37Legal Profession Act 2004
In sections 3.3.49(2)(g), 3.3.51(1)(a) and 3.3.58(2) of the Legal Profession Act 2004, for "National Institute of Accountants" substitute "Institute of Public Accountants".
38Residential Tenancies Amendment Act 2010
(1)In section 39(3) of the Residential Tenancies Amendment Act 2010—
(a)omit "(1) and (2)(a)";
(b)before "substitute" insert "(where three times occurring)".
(2)In section 81(f)(i) of the Residential Tenancies Amendment Act 2010, for 'after "rooming house," insert "building," ' substitute
'for "rooming house or" substitute "rooming house, building," '.
(3)In section 170 of the Residential Tenancies Amendment Act 2010, for '"(bb)' substitute "(bb)".
39Retail Leases Act 2003
In section 3 of the Retail Leases Act 2003, for paragraph (c) of the definition of accountant substitute—
"(c)the Institute of Public Accountants;".
Division 4—Repeal of amending Act
40Repeal of amending Act
This Act is repealed on 1 July 2013.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
Minister's second reading speech—
Legislative Assembly: 2 June 2011
Legislative Council: 30 June 2011
The long title for the Bill for this Act was "A Bill for an Act to amend the Estate Agents Act 1980, the Owners Corporations Act 2006, the Fair Trading Act 1999, the Conveyancers Act 2006, the Consumer Affairs Legislation Amendment (Reform) Act 2010, to repeal the Companies (Administration) Act 1981 and to make minor or consequential amendments to several other Acts and for other purposes."
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