Conveyancers Licensing Act 2003

This Act is the Conveyancers Licensing Act 2003.

This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2).

Schedule 2.2 and 2.5 commence on the commencement of Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002.

In this Act—

authorised officer has the meaning given in Part 10 (Enforcement).

Compensation Fund or Fund means the Property Services Compensation Fund established and maintained under the Property and Stock Agents Act 2002.

conveyancer means a person who carries out conveyancing work.

conveyancing business means any business in the course of which conveyancing work is carried out for fee or reward, whether or not the carrying out of conveyancing work is the sole or dominant purpose of the business.

conveyancing work has the meaning given to it by section 4.

Corporations Act means the Corporations Act 2001 of the Commonwealth.

costs includes fees, charges, disbursements, expenses and remuneration.

Department means the Department of Customer Service.

disqualified person has the meaning given to it by section 10.

employee includes any person employed whether on salary, wages, bonus, fees, allowance or other remuneration and includes a director or member of the governing body of a corporation.

exercise a function includes perform a duty.

firm of licensees includes any licensees who share remuneration as licensees, whether or not on the same basis for each of them.

function includes a power, authority or duty.

licence means a licence under this Act.

licensee means the holder of a licence under this Act.

licensee’s records has the meaning given in Part 6 (Records).

money includes an instrument for the payment of money in any case where the instrument may be paid into a bank or other deposit-taking institution.

money received for or on behalf of any person includes money held for or on behalf of any person, whether originally received for or on behalf of the person or not.

records includes books, accounts and other documents.

Secretary means—

the Commissioner for Fair Trading, Department of Customer Service, or

if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department.

Statutory Interest Account means the Property Services Statutory Interest Account referred to in Part 11 of the Property and Stock Agents Act 2002.

Tribunal means the Civil and Administrative Tribunal.

trust account means a trust account required to be kept under this Act.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

For the purposes of this Act, conveyancing work is legal work carried out in connection with any transaction that creates, varies, transfers or extinguishes a legal or equitable interest in any real or personal property, such as (for example) any of the following transactions—

a sale or lease of land,

the sale of a business (including the sale of goodwill and stock-in-trade), whether or not a sale or lease of land or any other transaction involving land is involved,

the grant of a mortgage or other charge.

Without limiting subsection (1), conveyancing work includes—

legal work involved in preparing any document (such as an agreement, conveyance, transfer, lease or mortgage) that is necessary to give effect to any such transaction, and

legal work (such as the giving of advice or the preparation, perusal, exchange or registration of documents) that is consequential or ancillary to any such transaction, and

any other legal work that is prescribed by the regulations as constituting conveyancing work for the purposes of this Act.

However, conveyancing work does not include the carrying out of any work for the purpose of—

a mortgage on non-residential property where the amount secured by the mortgage exceeds 7 million dollars (with non-residential property being any property that is not residential property for the purposes of Division 8 of Part 4 of the Conveyancing Act 1919), or

commencing or maintaining legal proceedings, or

establishing a corporation or varying the memorandum or articles of association of a corporation, or

creating, varying or extinguishing a trust, or

preparing a testamentary instrument, or

giving investment or financial advice, or

investing money otherwise than as provided for by Division 2 of Part 5,

and does not include any work that is prescribed by the regulations as not constituting conveyancing work for the purposes of this Act.

In this section—

legal work means work that, if done for fee or reward by a person who is not an Australian legal practitioner, would give rise to an offence under Part 2.1 of the Legal Profession Uniform Law (NSW).

Notes included in this Act do not form part of this Act.

This Act is intended to have extraterritorial application to the extent the legislative powers of the State permit.

Because of the Mutual Recognition Act and subject to that Act—

this Act applies to an interstate conveyancer in the same way it applies to the holder of a licence, and

a reference to a licence includes a reference to the automatic deemed registration of an interstate conveyancer.

This Act must, as far as practicable, be interpreted in a way that is compatible with—

the Mutual Recognition Act, and

the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.

In this section—

interstate conveyancer means a person authorised to carry on the occupation of a conveyancer in New South Wales because of the Mutual Recognition Act.

Mutual Recognition Act means the Mutual Recognition Act 1992 of the Commonwealth.

A person must not conduct a conveyancing business for fee or reward unless the person is the holder of a licence.

Maximum penalty—100 penalty units.

This section does not apply to the conduct of a conveyancing business by a person—

who is an Australian legal practitioner, or

who is an incorporated legal practice or solicitor corporation (if the conveyancing business is carried on on its behalf by an Australian legal practitioner).

A licensee is not guilty of an offence under Part 2.1 of the Legal Profession Uniform Law (NSW) in respect of conveyancing work that the licensee carries out in accordance with this Act, the regulations and the conditions of the licence.

This section does not permit a licensee to do anything, or to allow anything to be done, that is calculated to imply that the licensee is qualified to act as a solicitor.

A natural person is eligible to hold a licence only if the Secretary is satisfied that the person—

is at least 18 years of age, and

is a fit and proper person to hold a licence, and

each person with whom the person is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and

has the qualifications required for the issue of the licence, and

is not a disqualified person, and

has paid the application fee required by section 12.

A corporation is eligible to hold a corporation licence only if the Secretary is satisfied that—

the corporation is a fit and proper person to hold a licence, and

each director of the corporation is a fit and proper person to hold a licence, and

no director or executive officer (within the meaning of the Corporations Act) of the corporation is a disqualified person, and

the corporation is not a disqualified person, and

at least one of the directors of the corporation holds a licence that a natural person is required to hold to carry on the business that the corporation carries on or proposes to carry on, and

the corporation has paid the application fee required by section 12.

The qualifications required for the issue of a licence are such qualifications as the Minister may approve from time to time by order published on the NSW legislation website.

Without limiting the Minister’s power to approve qualifications, the Minister may approve qualifications by reference to any one or more of the following—

the completion of a course of study,

the completion of a period of training in a particular activity,

the attainment of a standard of competency in a particular activity,

satisfaction of professional development requirements.

Qualifications may be approved for a limited range of activities specified in the approval, so as to enable a person who has those qualifications to be granted a licence subject to conditions that limit the person to exercising the functions of a licensee in relation to that limited range of activities only.

Qualifications may be approved by reference to qualifications obtained before a specific day or during a specified period.

A person does not have the qualifications required for the renewal or restoration of a licence if the person has failed to comply with any condition of the licence that required the holder to undertake professional development, continuing education or a course of study, unless the Secretary otherwise determines in a particular case.

A person is a disqualified person for the purposes of this Act if the person—

has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Secretary has determined under subsection (3) that the offence should be ignored, or

(Repealed)

is a mentally incapacitated person, or

is disqualified from holding a licence or other authority under a corresponding law or is the holder of such a licence or authority that is suspended, or

is the holder of a licence, permit or other authority that is suspended under legislation administered by the Minister or is disqualified from holding a licence, permit or other authority under legislation administered by the Minister, or

is in partnership with a person who is a disqualified person, or

is for the time being declared to be a disqualified person under Part 9 (Complaints and disciplinary action), or

is a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed, or

has failed to pay a contribution or levy payable by the person under section 89 and the failure continues, or

has failed to pay an amount due as a debt to the Crown by way of recovery of an amount paid out of the Compensation Fund and the failure continues, or

has failed to pay any monetary penalty payable by the person under Part 9 (Complaints and disciplinary action) or has failed to comply with any direction given by the Secretary under that Part, and the failure continues, or

has failed to comply with the requirements of section 75 to have an audit of the records and documents relating to any trust money carried out within the required time, unless the Secretary determines in the circumstances that failure should not disqualify the person, or

has been removed (otherwise than at his or her own request) from the roll of lawyers kept by the Supreme Court or from a corresponding roll of lawyers kept by a superior court of another State or Territory, or

is disqualified from being employed in a law practice by virtue of an order made under Division 1 of Part 3.9 of the Legal Profession Uniform Law (NSW), or

is an Australian legal practitioner, incorporated legal practice or solicitor corporation, or

is a disqualified person under the Property and Stock Agents Act 2002, or

is the holder of a licence or certificate of registration under the Property and Stock Agents Act 2002, or

is in breach of any provision of this Act or the regulations that is prescribed by the regulations as a disqualifying breach.

A person is also a disqualified person for the purposes of this Act (except for the purposes of section 29) if the person—

is an undischarged bankrupt, or

at any time in the last 3 years was an undischarged bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit, or

is, or was at any time in the last 3 years, concerned in the management of, or a director of, a Chapter 5 body corporate except in a case of the voluntary winding up of the body corporate, or

is a person—

who was, at any time in the last 3 years, concerned in the management of, or a director of, a body corporate that, within 12 months of the person ceasing to be such a person or director, became a Chapter 5 body corporate except in the case of a voluntary winding up of the body corporate, and

who failed (while concerned in the management of, or a director of, that body corporate) to take all reasonable steps to avoid the body corporate becoming a Chapter 5 body corporate.

The Secretary may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.

The Secretary may determine that the factors listed in subsection (1) (g) or (j) should be ignored for the purposes of this section if, on the basis of information provided to the Secretary, the Secretary considers it appropriate to make that determination.

The Secretary may exempt a person from the operation of subsection (2) (a), (b) or (c) by—

certifying, in the case of exemption from subsection (2) (a), that the Secretary is satisfied that the person took all reasonable steps to avoid the bankruptcy concerned, or

certifying, in the case of exemption from subsection (2) (b), that the Secretary is satisfied that the person took all reasonable steps to avoid the bankruptcy or other financial difficulties concerned, or

certifying, in the case of exemption from subsection (2) (c), that the Secretary is satisfied that the person took all reasonable steps (while concerned in the management of, or a director of, the body corporate) to avoid the body corporate becoming a Chapter 5 body corporate.

Subsection (2) (d) does not operate to make a person a disqualified person unless the Secretary has served a notice on the person giving the person the opportunity to make oral or written submissions to the Secretary within a period (being not less than 14 days) specified in the notice with respect to the grounds on which the person believes he or she took all reasonable steps to avoid the body corporate becoming a Chapter 5 body corporate and the Secretary is satisfied that the person failed to take all such steps.

In determining for the purposes of subsection (3B) or (3C) what reasonable steps could have been taken by a person to avoid a particular outcome, the Secretary is to have regard to the steps that could have been taken by the person from the time that the financial difficulties that gave rise to the outcome first arose.

In this section—

Chapter 5 body corporate has the same meaning as in the Corporations Act.

corresponding law means a law of another Australian jurisdiction that is declared by the Minister from time to time by order published on the NSW legislation website to be a law that corresponds to this Act.