s 1Short title
This Act may be cited as the Settlement Agents Act 1981.
This Act may be cited as the Settlement Agents Act 1981.
The provisions of this Act shall come into operation on such day or days as is or are, respectively, fixed by proclamation.
In this Act unless the context otherwise requires —
appointed day 1 means the day fixed by the Minister pursuant to section 26(2);
approved means approved by the Commissioner;
auditor means a person appointed under this Act to audit the trust accounts of a settlement agent;
bank means —
an ADI (authorised deposit‑taking institution) as defined in section 5 of the Banking Act 1959 of the Commonwealth; or
a bank constituted by a law of a State, a Territory or the Commonwealth;
business means —
subject to paragraph (b), the business of a settlement agent; and
in the definition of business transaction and in section 45(a), any commercial undertaking or enterprise in respect of any profession, trade, employment, vocation or calling within the State;
business settlement agent means any person who arranges or effects a settlement of a business transaction for reward or who, whether for reward or otherwise, carries on business arranging or effecting settlements of business transactions and whether or not that business is carried on in conjunction with or as part of or associated with any other profession, trade, occupation or employment, but does not include the exceptions specified in section 4(1);
business transaction —
means the disposal by sale or exchange, and the acquisition by purchase or exchange of a business and any share or interest in a business or the goodwill thereof within the State; and
includes any disposal by sale or exchange, and any acquisition by purchase or exchange of goods, chattels, or other property within the State relating to a business transaction of the kind specified in paragraph (a),
but does not include —
the sale, exchange, or other disposal or a purchase, exchange, or other acquisition of a share in the capital of a body corporate or an option in respect thereof;
Commissioner has the meaning given in the Fair Trading Act 2010 section 6;
defalcation by a licensee includes criminal or fraudulent conduct —
of a licensee; or
of any one or more of the servants or agents of the licensee; or
of a person who is a partner in the business of the licensee; or
where the licensee is a firm and a body corporate is a partner in the firm or where the licensee is a body corporate, of any one or more of the directors, officers, servants, or agents of the body corporate,
in the course of the business of the licensee and from which arises pecuniary loss or loss of property to any other person;
department means the department of the Public Service principally assisting the Minister in the administration of this Act;
Fidelity Guarantee Account or Account means the account established under section 87;
fidelity guarantee fee means the fee prescribed pursuant to section 92(1);
General Purpose Account means the Education and General Purpose Account established under section 102A;
Interest Account means the Settlement Agents Interest Account established under section 103(1);
licence means the licence of a real estate settlement agent or of a business settlement agent under this Act;
licensed means licensed as a settlement agent under this Act;
licensee means a person licensed under this Act;
real estate or land means land within the State and includes buildings or parts of buildings within the State;
real estate settlement agent means any person who arranges or effects the settlement of a real estate transaction for reward or who, whether for reward or otherwise, carries on business arranging or effecting settlements of real estate transactions and whether or not that business is carried on in conjunction with or as part of or associated with any other profession, trade, occupation or employment, but does not include the exceptions specified in section 4(1);
real estate transaction —
means the disposal by sale or exchange, and the acquisition by purchase or exchange of real estate; and
includes any disposal by sale or exchange, or any acquisition by purchase or exchange of goods, chattels or other property relating to a real estate transaction of a kind specified in paragraph (a);
renewal means renewal of a triennial certificate;
reward means any valuable consideration in money or moneys worth paid or received as commission or remuneration —
whether payable in cash or kind; and
whether paid or received directly or indirectly; and
whether paid or received separately or as a component of a composite price or fee paid or received in respect of any transaction or service;
settlement means the completion of a real estate transaction or a business transaction (as the case may be) by payment of the balance of purchase price in respect to such real estate transaction or business transaction;
settlement agent means a person who is a real estate settlement agent or a business settlement agent or both a real estate settlement agent and a business settlement agent but does not include the exceptions specified in section 4(1);
settlement agents’ code of conduct or code of conduct means the code prescribed under section 82;
supervisor means a person appointed by the Commissioner as supervisor of the business of a settlement agent;
transaction means a real estate transaction or a business transaction or both a real estate transaction and a business transaction;
Treasurer means the Treasurer of the State;
Treasury means the State Treasury;
triennial certificate means a certificate granted under this Act to a licensee to carry on business as a settlement agent;
trustee company means a body corporate authorised by the law of any State or Territory of the Commonwealth to apply for and obtain, in its own name, a grant of probate or of letters of administration of the estate of a deceased person.
Where a reward is paid or received by a person by reason of, or in contemplation of, some other person arranging or effecting a settlement that reward shall, for the purposes of this Act, be deemed to be paid to or received by the person arranging or effecting the settlement.
Where 2 or more persons do acts which together constitute a settlement then each of those persons shall be deemed to have effected a settlement notwithstanding that the acts performed by any one of those persons do not constitute a settlement.
The fact that a payment, or a component of a price or fee, was not expressed, or was not acknowledged, to have been paid or received as commission or remuneration for any particular service, or was neither so expressed nor so acknowledged, shall not prevent that payment, or component of a price or fee, from being construed for the purposes of this Act as having been paid or received in respect of that service.
[Section 3 amended: No. 98 of 1985 s. 3; No. 59 of 1995 s. 58; No. 26 of 1999 s. 102(2); No. 65 of 2003 s. 66(2); No. 55 of 2004 s. 1081; No. 77 of 2006 Sch. 1 cl. 156(1); No. 21 of 2008 s. 704(2); No. 8 of 2009 s. 117; No. 46 of 2009 s. 15(2); No. 58 of 2010 s. 136 and 176; No. 9 of 2022 s. 424.]
Exceptions to the meaning of settlement agent in and for the purposes of this Act are as follows —
legal practitioners, when acting in the course of the practice of their profession as such; and
real estate agents and business agents, as defined in the Real Estate and Business Agents Act 1978, who are currently carrying on business as such in accordance with that Act, when arranging or effecting settlements to which a current exemption under section 26A or 26B, as the case may be, applies; and
financial services licensees (within the meaning of the Corporations Act 2001 of the Commonwealth), when dealing in securities (within the meaning of section 92 of that Act) that he or she is authorised to deal in by that licence; and
regulated principals (within the meaning of section 1430 of the Corporations Act 2001 of the Commonwealth), when dealing in securities that he or she is authorised to deal in by Part 10.2 Division 1 Subdivision D of that Act.
The provisions of section 29(1)(c), section 34AA(3), section 35, Division 2 of Part IV, and Part V shall not apply to a bank in its capacity as a settlement agent, or to a trustee company.
[Section 4 amended: No. 10 of 1982 s. 28; No. 64 of 1982 s. 2; No. 59 of 1995 s. 59; No. 26 of 1999 s. 102(3); No. 10 of 2001 s. 222; No. 21 of 2003 s. 22; No. 25 of 2019 s. 73.]
[Part II heading deleted: No. 58 of 2010 s. 137(1).]
[Division 1 (s. 5‑12C) deleted: No. 58 of 2010 s. 137(2).]
[Division 1A (s. 12D and 12E) deleted: No. 58 of 2010 s. 137(2).]
[Division 2 (s. 13‑18) deleted: No. 58 of 2010 s. 137(2).]
[Division 3 heading deleted: No. 58 of 2010 s. 137(3).]
[19‑21. Deleted: No. 58 of 2010 s. 138.]
The Fair Trading Act 2010 section 61 and Part 6 of that Act apply to this Act.
[Section 22 inserted: No. 58 of 2010 s. 139.]
Any person aggrieved by a reviewable decision may apply to the State Administrative Tribunal for a review of the decision.
In subsection (1) —
person aggrieved means —
a person whose licence or triennial certificate is affected by a reviewable decision or who, under Part III, applies for the grant of a licence or applies for the renewal of a triennial certificate;
a person affected by a decision of the Commissioner under Part IV Division 2;
a person claiming against, or seeking the leave of the chief executive officer to commence an action in relation to, the Fidelity Guarantee Account;
reviewable decision means —
a decision of the Commissioner under Part III other than —
a decision under section 35; or
a determination of the form in which an application is made;
a decision of the Commissioner under Part IV Division 2;
a decision of the chief executive officer under section 93 or 95.
If a decision under section 93 or 95 has not been made before the commencement of the Consumer Protection Legislation Amendment Act 2014 section 98 in respect of a claim made before 1 July 2011, the decision —
may be made on or after that commencement by the Commissioner; and
is taken to be a reviewable decision for the purposes of this section.
A decision under section 93 or 95 made by the chief executive officer before the commencement of the Consumer Protection Legislation Amendment Act 2014 section 98 is taken to be a reviewable decision made immediately after that commencement for the purposes of this section.
The amendments made to this section by the Consumer Protection Legislation Amendment Act 2014 section 98 do not affect the review of a reviewable decision by the State Administrative Tribunal that began, but was not completed, before the commencement of that section.
[Section 23 inserted: No. 55 of 2004 s. 1084; amended: No. 77 of 2006 Sch. 1 cl. 156(2); No. 58 of 2010 s. 140 and 176; No. 23 of 2014 s. 98.]
An application for a licence shall be made in writing and in a manner and form determined by the Commissioner in respect of such an application and shall contain such information as is required by the Commissioner in respect of such an application.
[(2), (3) deleted]
In respect of any particular application the applicant shall furnish the Commissioner with such further information as the Commissioner determines.
If the Commissioner is considering making an adverse decision in relation to the application, the Commissioner must give the applicant the opportunity to give additional information in relation to that application.
[Section 24 amended: No. 58 of 2010 s. 141 and 176; No. 23 of 2014 s. 99; No. 44 of 2016 s. 37.]
[25. Deleted: No. 23 of 2014 s. 100.]
On and after the appointed day a person shall not carry on business, or by any means hold himself or itself out, as a real estate settlement agent, or a business settlement agent, or both a real estate settlement agent and a business settlement agent, unless he or it is licensed as such under this Act and holds a current triennial certificate in respect of the licence.
Penalty for this subsection: a fine of $100 000.
In subsection (1) appointed day means such day as is fixed by the Minister by notice published in the Government Gazette to be the appointed day 1 for the purposes of that subsection.
For subsection (1), a person is taken not to be licensed or holding a current triennial certificate in respect of the licence if the person is required to surrender a licence and triennial certificate under section 34D(2) and (3).
[Section 26 amended: No. 59 of 1995 s. 85; No. 25 of 2019 s. 74 and 88.]
26A. Licensed real estate agent may be exempted for certain settlements
Application may be made by a real estate agent licensed and carrying on business as such under the Real Estate and Business Agents Act 1978 for an exemption under this section.
An application under subsection (1) shall be made in writing and in a manner and form determined by the Commissioner in respect of such an application and shall contain such information as is required by the Commissioner in respect of such an application.
[(3) deleted]
In respect of any particular application the applicant shall furnish the Commissioner with such further information as the Commissioner determines.
Subject to subsection (6), the Commissioner may grant an application under subsection (1) if —
where the applicant is a person not being a body corporate, the Commissioner is satisfied that, if the application were for a real estate settlement agent’s licence, the requirements of section 27(1)(a), (b), and (d) would be fulfilled; or
where the applicants constitute a firm, the Commissioner is satisfied that —
if the application were for a real estate settlement agent’s licence, the requirements of section 28(1)(a) would be fulfilled; and
where the firm is constituted by not more than 3 persons at least one of them is currently exempted under this section or where the firm is constituted by more than 3 persons at least 2 of them are currently exempted under this section; and
the person in bona fide control of the business is ordinarily resident in the State and is currently exempted under this section;
or
where the applicant is a body corporate, the Commissioner is satisfied that —
if the application were for a real estate settlement agent’s licence, the requirements of section 29(1)(a) would be fulfilled; and
unless for good cause shown by the applicant the Commissioner otherwise determines, where there are not more than 3 directors of the body corporate at least one of them is currently exempted under this section or where there are more than 3 directors of the body corporate at least 2 of them are currently exempted under this section; and
the person in bona fide control of the business is ordinarily resident in the State and is currently exempted under this section.
A person shall not at the same time be currently exempted under this section and licensed as a real estate settlement agent.
A current exemption under this section applies to a settlement arranged or effected by the person to whom the exemption was granted, but only if —
the settlement is of a real estate transaction in respect of which the person acted in the course of business as a real estate agent; and
the settlement is not arranged or effected for reward; and
before arranging or effecting the settlement the person gives to the person or, if there be more than one, to each person, for whom the settlement is to be arranged or effected, a notice in the prescribed form warning that, if settlement is so arranged or effected, no protection will be afforded by this Act.
An exemption under this section is current until —
by notice in writing given to the Commissioner, it is surrendered by the person to whom it was granted; or
by notice in writing given to the person to whom it was granted, it is revoked by the Commissioner.
[Section 26A inserted: No. 64 of 1982 s. 3; amended: No. 58 of 2010 s. 176; No. 44 of 2016 s. 38.]
26B. Licensed business agent may be exempted for certain settlements
Application may be made by a business agent licensed and carrying on business as such under the Real Estate and Business Agents Act 1978 for an exemption under this section.
An application under subsection (1) shall be made in writing and in a manner and form determined by the Commissioner in respect of such an application and shall contain such information as is required by the Commissioner in respect of such an application.
[(3) deleted]
In respect of any particular application the applicant shall furnish the Commissioner with such further information as the Commissioner determines.
Subject to subsection (6), the Commissioner may grant an application under subsection (1) if —
where the applicant is a person not being a body corporate, the Commissioner is satisfied that, if the application were for a business settlement agent’s licence, the requirements of section 27(1)(a), (b), and (d) would be fulfilled; or
where the applicants constitute a firm, the Commissioner is satisfied that —
if the application were for a business settlement agent’s licence, the requirements of section 28(1)(a) would be fulfilled; and
where the firm is constituted by not more than 3 persons at least one of them is currently exempted under this section or where the firm is constituted by more than 3 persons at least 2 of them are currently exempted under this section; and
the person in bona fide control of the business is ordinarily resident in the State and is currently exempted under this section;
or
where the applicant is a body corporate, the Commissioner is satisfied that —
if the application were for a business settlement agent’s licence, the requirements of section 29(1)(a) would be fulfilled; and
unless for good cause shown by the applicant the Commissioner otherwise determines, where there are not more than 3 directors of the body corporate at least one of them is currently exempted under this section or where there are more than 3 directors of the body corporate at least 2 of them are currently exempted under this section; and
the person in bona fide control of the business is ordinarily resident in the State and is currently exempted under this section.
A person shall not at the same time be currently exempted under this section and licensed as a business settlement agent.
A current exemption under this section applies to a settlement arranged or effected by the person to whom the exemption was granted, but only if —
the settlement is of a business transaction in respect of which the person acted in the course of business as a business agent; and
the settlement is not arranged or effected for reward; and
before arranging or effecting the settlement the person gives to the person or, if there be more than one, to each person, for whom the settlement is to be arranged or effected, a notice in the prescribed form warning that, if settlement is so arranged or effected, no protection will be afforded by this Act.
An exemption under this section is current until —
by notice in writing given to the Commissioner, it is surrendered by the person to whom it was granted; or
by notice in writing given to the person to whom it was granted, it is revoked by the Commissioner.
[Section 26B inserted: No. 64 of 1982 s. 3; amended: No. 58 of 2010 s. 176; No. 44 of 2016 s. 39.]
Subject to this Act, an individual who applies to the Commissioner for a real estate settlement agent’s licence or a business settlement agent’s licence, or both, and pays to the Commissioner the prescribed fee for the licence shall be granted and may hold a licence if the Commissioner is satisfied that the individual —
is of or over the age of 18 years; and
is a person of good character and repute and a fit and proper person to hold a licence; and
has sufficient material and financial resources available to enable them to comply with the requirements of this Act; and
is ordinarily resident in the State; and
understands fully the duties and obligations imposed by this Act on settlement agents.
In subsection (1)(b) fit and proper includes being qualified in accordance with Schedule 1 subject to the savings and exceptions provided therein and elsewhere in this Act, but nothing in that Schedule shall derogate from the discretion conferred on the Commissioner by subsection (1) in the granting of a licence.
[Section 27 amended: No. 58 of 2010 s. 176; No. 25 of 2019 s. 75.]
Subject to this Act, 2 or more persons constituting a firm who apply to the Commissioner for a real estate settlement agent’s licence or a business settlement agent’s licence, or both, and pay to the Commissioner the prescribed fee for the licence shall be granted and may hold a licence if the Commissioner is satisfied that —
all of the natural persons, if any, by whom the firm is constituted and all of the directors of, and all of the persons concerned in the management or control of, any body corporate by which the firm is constituted are persons of good character and repute and are persons fit to be concerned as directors of, or in the management and control of, a settlement agent’s business; and
the persons by whom or by which the firm is constituted have sufficient material and financial resources available to them to enable them to comply with the requirements of this Act; and
where the firm is constituted by not more than 3 persons, at least one of them is licensed or where the firm is constituted by more than 3 persons at least 2 of them are licensed; and
the person in bona fide control of the business operated under the licence is —
in the case of an application for a real estate settlement agent’s licence, licensed as a real estate settlement agent and holds a current triennial certificate; and
in the case of an application for a business settlement agent’s licence, licensed as a business settlement agent and holds a current triennial certificate; and
ordinarily resident in the State.
The provisions of clause 10 of Schedule 1 apply to a licence granted under this section.
[Section 28 amended: No. 58 of 2010 s. 176.]
Subject to this Act, a body corporate which applies to the Commissioner for a real estate settlement agent’s licence or a business settlement agent’s licence, or both, and pays to the Commissioner the prescribed fee for the licence shall be granted and may hold a licence if the Commissioner is satisfied that —
all of the directors of the body corporate, and all of the persons concerned in the management or conduct of the body corporate, are persons of good character and repute and are persons fit to be concerned as directors of, or in the management and control of, a settlement agent’s business; and
it has sufficient material and financial resources available to it to comply with the requirements of this Act; and
unless for good cause shown by the applicant the Commissioner otherwise determines, where there are not more than 3 directors of the body corporate at least one of them is licensed where there are more than 3 directors of the body corporate at least 2 of them are licensed; and
the person in bona fide control of the business operated under the licence is —
in the case of an application for a real estate settlement agent’s licence, licensed as a real estate settlement agent and holds a current triennial certificate; and
in the case of an application for a business settlement agent’s licence, licensed as a business settlement agent and holds a current triennial certificate; and
ordinarily resident in the State.
The provisions of clause 10 of Schedule 1 apply to a licence granted under this section.
[Section 29 amended: No. 58 of 2010 s. 176.]
Subject to this Act, a licence is continuous.
A licence as a real estate settlement agent does not confer on a licensee the right to carry on business as a real estate settlement agent unless he holds a current triennial certificate in respect of the licence.
A licence as a business settlement agent does not confer on the licensee the right to carry on business as a business settlement agent unless he holds a current triennial certificate in respect of the licence.
A licensee ceases to be licensed if the licensee —
does not hold a current triennial certificate in respect of the licence; and
does not pay to the Commissioner in accordance with the regulations the fee prescribed for the purposes of this subsection.
[(4),(5) deleted]
[Section 30 amended: No. 56 of 1995 s. 50; No. 55 of 2004 s. 1085; No. 58 of 2010 s. 176; No. 25 of 2019 s. 76.]
Showing the first 12 of 122 provisions. See all provisions