Land and Business (Sale and Conveyancing) Act 1994

An agent who is authorised by a person (the

vendor) to sell land or a business must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land or business. Maximum penalty: Maximum penalty:

in the case of an aggravated offence—$100 000 or imprisonment for 2 years;

in any other case—$50 000 or imprisonment for

1 year.

A sales representative employed by an agent must not obtain, or be in any way concerned in obtaining, a beneficial interest in land or a business that the agent is authorised to sell for a person (the

vendor). Maximum penalty: Maximum penalty:

in the case of an aggravated offence—$100 000 or imprisonment for 2 years;

in any other case—$50 000 or imprisonment for

1 year.

If an agent is authorised by a person (the

vendor) to sell land or a business, the following persons must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land or business:

a natural person who is responsible for managing or supervising the agent's business (including, but not limited to, a natural person referred to in section 10 of the Land Agents

Act 1994, in relation to that business);

a natural person who is responsible for managing or supervising

1 or more places of business of the agent at which any of the negotiations, administration or other functions relating to the sale are conducted by employees of the agent or persons otherwise engaged by the agent (including, but not limited to, a natural person referred to in section 11 of the Land Agents

Act 1994, in relation to that place of business);

in the case of an agent that is a body corporate—a director of the body corporate (within the meaning of the Land Agents Act 1994). Maximum penalty: Maximum penalty:

in the case of an aggravated offence—$100 000 or imprisonment for 2 years;

in any other case—$50 000 or imprisonment for 1 year.

An agent or sales representative who appraises land or a business for a person (the vendor) must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land or business. Maximum penalty: Maximum penalty:

in the case of an aggravated offence—$100 000 or imprisonment for 2 years;

in any other case—$50 000 or imprisonment for 1 year.

Subject to subsection (10a), a person does not contravene subsection (3) by obtaining a beneficial interest in land or a business if an agent is acting on behalf of the vendor in the sale of the land or business.

A person does not contravene this section by obtaining a beneficial interest in land or a business if, before the person obtains the interest, the

Commissioner approves such action in accordance with the regulations.

Without limiting this section, a person (being an agent, sales representative, natural person, or director of a body corporate, to whom a preceding subsection applies) is considered to obtain a beneficial interest in land or a business if the person or an associate of the person obtains a beneficial interest in the land or business.

Without limiting this section, each of the following is considered to constitute the obtaining of a beneficial interest in land or a business:

purchasing land or a business;

obtaining an option to purchase land or a business;

being granted a general power of appointment in respect of land or a business.

The court by which a person is convicted of an offence against this section may order the person to pay to the vendor any profit that the person has made, or is, in the opinion of the court, likely to make, from a dealing with the land or business to which the offence relates.

If an agent obtains a beneficial interest in land or a business that the agent is authorised to sell, the agent must not demand, receive or retain commission or expenses in respect of the sale or purchase of the land or business unless—

the Commissioner has approved the agent obtaining the benefit under subsection (5); and

the Commissioner has, when giving that approval, also approved the receipt of the commission or expenses. Maximum penalty: Maximum penalty:

in the case of an aggravated offence—$20 000;

in any other case—$10 000.

Commission or expenses received or retained by an agent in contravention of this section may be recovered, as a debt, from the agent by the person by whom it was paid.

In this section, an offence relating to the obtaining of a beneficial interest is an aggravated offence if it is proved that, at the time the beneficial interest was obtained, the vendor or any of the vendors were—

70 years of age or over; or

protected persons within the meaning of the

Guardianship and Administration

Act 1993; or

suffering from a mental incapacity, (regardless of whether they were represented by another person during any of the negotiations giving rise to the obtaining of the beneficial interest).

In proceedings, a certificate in the form prescribed by regulation signed by a medical practitioner stating that, in the opinion of the medical practitioner, a specified person was or was not suffering from a mental incapacity at a specified time, will, in the absence of proof to the contrary, be evidence of the facts so stated.

In this section—

appraise—an agent or sales representative appraises land or a business if the agent or sales representative provides advice, whether or not at the request of the vendor, as to the value of the land or business in circumstances where it may be reasonably assumed that the vendor may rely on the advice of the agent or sales representative;

associate, of a person, means—

—

a relative of the person or of the person's spouse or domestic partner; or

an employee, employer or partner of the person; or

a relative of an employee of the person; or

a body corporate if any of the following persons:

the person;

a relative of the person or of the person's spouse or domestic partner;

an employee of the person;

2 or more of the above persons together, have a relevant interest or relevant interests in shares in the body corporate the nominal value of which is 10% or more of the nominal value of the issued share capital of the body corporate; or

a body corporate if a director of the body corporate is—

a relative of the person or of the person's spouse or domestic partner; or

an employee of the person; or

the trustee of a trust if any of the following are beneficiaries of the trust:

the person;

a relative of the person or of the person's spouse or domestic partner;

an employee of the person;

a body corporate referred to in subparagraph (iv) or (v); or

a person who has a relationship with the person (whether or not similar to the relationships referred to in the preceding paragraphs) of a kind prescribed by the regulations for the purposes of this section;

or

in addition—

in the case of a natural person referred to in subsection (2a)(a)—a relative of an employee of the relevant agent; or

in the case of a natural person referred to in subsection (2a)(b)—a relative of a person employed at the relevant place or places of business of the agent;

beneficiary of a trust includes an object of a discretionary trust;

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

medical practitioner means a person registered under the Health Practitioner Regulation

National Law to practise in the medical profession (other than as a student);

relative of a person means—

the spouse or domestic partner of the person; or

a parent (including a step‑parent), grandparent (including a step‑grandparent) or remoter linear ancestor of the person;

or

a child (including a step‑child) or remoter issue of the person; or

a sibling (including a step‑sibling or half‑sibling) of the person;

relevant interest has the same meaning as in the

Corporations

Act 2001 of the Commonwealth;

spouse—a person is the spouse of another if they are legally married.