Electronic Conveyancing Enforcement Act 2022

This Act is the Electronic Conveyancing Enforcement Act 2022.

This Act commences on the date of assent to this Act.

The object of this Act is to promote compliance with the Electronic Conveyancing National Law (NSW) by establishing mechanisms for the enforcement of the Law.

In this Act—

enforceable undertaking—see section 5.

enforcement order—see section 16(1).

enforcement provision means—

the Electronic Conveyancing National Law (NSW), section 18A, or

the Electronic Conveyancing National Law (NSW), section 34, or

a requirement of a remedial direction or an interim remedial direction.

interim remedial direction—see section 11(1).

remedial direction—see section 10(1).

Note—

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

Words and expressions used in this Act and also in the Electronic Conveyancing National Law (NSW) have the same meanings as in the Law.

The Registrar may accept a written undertaking (an enforceable undertaking) given by an ELNO if the Registrar reasonably believes the ELNO is contravening, has contravened or is about to contravene—

a provision of the Electronic Conveyancing National Law (NSW), or

a provision of the operating requirements, or

a condition of the approval under the Electronic Conveyancing National Law (NSW), section 15 to which the ELNO is subject.

An enforceable undertaking must specify—

the contravention to which the enforceable undertaking relates, and

the measures the ELNO has agreed to implement to remedy or prevent the contravention, and

the period or periods by the end of which the measures must be implemented.

A failure to comply with this section does not affect the validity of an enforceable undertaking.

An enforceable undertaking takes effect and becomes enforceable—

when written notice of the Registrar’s decision to accept the undertaking is given to the ELNO who gave the undertaking, or

on a later date specified by the Registrar in the notice.

An ELNO who has made an enforceable undertaking may, at any time, with the written agreement of the Registrar—

withdraw the undertaking, or

vary the undertaking.

The Registrar may, at any time, with the written agreement of an ELNO who has made an enforceable undertaking, withdraw the Registrar’s acceptance of the undertaking.

The provisions of an enforceable undertaking must not be varied to provide for a different alleged contravention.

An enforceable undertaking ceases to have effect if—

it is withdrawn by the ELNO who made it, in accordance with this section, or

acceptance of the undertaking is withdrawn by the Registrar.

The Registrar may apply to the Supreme Court for an order under this section if the Registrar reasonably believes an ELNO has contravened an enforceable undertaking.

If the Court is satisfied that the ELNO who gave the enforceable undertaking has contravened the undertaking, the Court may make 1 or both of the following orders—

an order directing the ELNO to comply with the undertaking,

an order discharging or varying the undertaking.

In addition to the orders referred to in subsection (2), the Court may make other orders the Court considers appropriate in the circumstances, including orders directing the ELNO to pay either or both of the following to the State—

the costs of the proceedings,

the reasonable costs of the Registrar in monitoring compliance with the enforceable undertaking in the future.

The Registrar may give a written direction to an ELNO (a remedial direction) if the Registrar reasonably believes the ELNO has contravened or is contravening a requirement imposed by or under the Electronic Conveyancing National Law (NSW).

The Registrar must not give a remedial direction to an ELNO unless—

the Registrar has given written notice to the ELNO of the Registrar’s intention to give the direction, and

the notice states the ELNO may make submissions to the Registrar within 14 days after the date of the notice, and

the Registrar has considered submissions made by the ELNO within that period.

The Registrar may give a written direction to an ELNO (an interim remedial direction) if the Registrar—

reasonably believes the ELNO has contravened or is contravening a requirement imposed by or under the Electronic Conveyancing National Law (NSW), and

is satisfied the direction needs to be given urgently because an emergency situation exists.

For subsection (1), an emergency situation exists if the Registrar considers that, because of the occurrence of an event or the existence of particular circumstances, the operation, security, integrity or stability of an ELN, the titles register or the land titles system is being, or is likely to be, jeopardised.

An interim remedial direction given to an ELNO constitutes notice for section 10(2) of the Registrar’s intention to give a remedial direction on the same terms as the interim remedial direction.

Subsection (3) does not prevent the Registrar specifying in a remedial direction a period or periods for implementation under section 12(1)(c) that is different from the period or periods for implementation specified in the interim direction.

Unless sooner revoked, an interim remedial direction for a contravention ceases to have effect on the earliest of the following—

the end of the period of 21 days after the date of the interim remedial direction,

when the Registrar gives a remedial direction to the ELNO in relation to the contravention.

Sections 12–15 apply to an interim remedial direction in the same way as they apply to a remedial direction.

A remedial direction must specify—

the contravention to which the remedial direction relates, and

the measures the ELNO must implement to remedy the contravention or to prevent the contravention occurring again, and

the period or periods by the end of which the measures must be implemented.

The period or periods specified under subsection (1)(c) must be reasonable in the circumstances.