Division 3In this Division:associate of a licensee means:
(a) an employee or agent of the licensee, or(b) a person who has the apparent control or charge for the time being of the business of the licensee or of any office at which that business is carried on.failure to account has the meaning set out in section 64G.
pecuniary loss from a failure to account includes:
(a) all costs (including the legal costs and disbursements of making and proving a claim), charges and expenses that a claimant has suffered or incurred as a direct consequence of the failure to account, and(b) all interest on money or other valuable property that a claimant would have received but for the failure to account for the money or other property.That interest is as calculated to the date on which the Director-General determines the claimant’s claim to (or a judgment is recovered against the Director-General in relation to the Compensation Fund in respect of) that money or other property.
64G Meaning of “failure to account”
(1) In this Division, a reference to a failure to account is a reference to a failure by a licensee to account for money or other valuable property entrusted to the licensee or an associate of the licensee in the course of the licensee’s business as a licensee.(2) This section applies only to a failure to account that arises from an act or omission of the licensee or associate.(3) For the purposes of this section, it does not matter that the failure to account occurred after the licensee ceased to be licensed, if the money or other valuable property concerned was entrusted to the licensee (or an associate of the licensee) before the licensee ceased to be licensed.(4) This section applies whether the failure to account, or the act or omission, took place before or after the commencement of this section.
64H Application of Compensation Fund
(1) The Compensation Fund is held, and is to be applied, for the purpose of compensating persons who suffer pecuniary loss because of a failure to account.(2) A person who claims to have suffered a pecuniary loss because of a failure to account may make a claim against the Compensation Fund, but only if the claim is made in writing to the Director-General within:(a) a period of 12 months after the person has become aware of the failure to account, or(b) a period of 2 years after the date of the failure to account,whichever period first ends.(3) However, a claim caused by a failure of a licensee (or an employee or agent of a licensee) to lodge a rental bond with the Rental Bond Board may also be made at any time within one year after the termination of the tenancy agreement.(4) A licensee does not have a claim against the Compensation Fund in respect of a pecuniary loss suffered in connection with the licensee’s business as a licensee because of a failure to account.
64I Claims against Compensation Fund
(1) Subject to section 64H, the Director-General may receive and allow, in whole or in part, any claim against the Compensation Fund at any time after the relevant failure to account arose.(2) The Director-General may disallow any claim, in whole or in part, in appropriate cases.
(1) A person cannot, without the leave of the Director-General, commence any proceedings in relation to the Compensation Fund unless the person has made a claim and the Director-General has disallowed the person’s claim.(2) A person cannot recover from the Compensation Fund by way of any such proceedings an amount greater than the amount of pecuniary loss suffered by the person, after deducting from the total amount of the pecuniary loss:(a) the amount or value of all money or other benefits received or recovered from any source (other than the Compensation Fund) in reduction of the pecuniary loss, and(b) any such amount or value that, in the opinion of the Director-General, might have been received or recovered but for the person’s neglect or default.(3) Any proceedings in relation to any claim against the Compensation Fund are to be as for a debt due by the Crown and are to be brought in a court of competent jurisdiction. Any such proceedings do not lie against the Director-General.(4) In any proceedings referred to in subsection (3), all defences that would have been available to the licensee in relation to whom the claim arose are available to the Crown.(5) In any proceedings referred to in subsection (3), all questions of costs are in the discretion of the court or, where the proceedings are tried with a jury, the judge presiding at the trial.(6) Any order for the payment of costs made by a Local Court operates as a judgment debt under the Local Courts (Civil Claims) Act 1970 and is enforceable as such under that Act.(7) No proceedings can be brought against the Crown in relation to a claim against the Compensation Fund after the end of:(a) a period of 6 months after the claimant has been notified that the claim has been disallowed, or(b) such longer period as the court may permit, on sufficient cause being shown and on such terms as it thinks fit.
The amount that a person may recover from the Compensation Fund cannot, in any case or in any event, exceed $500,000 or, if another amount is prescribed by the regulations, the prescribed amount.
(1) The aggregate sum that may be applied in compensating all persons who suffer or incur pecuniary loss because of a failure to account, or of related failures to account, cannot exceed $2,000,000 or, if another amount is prescribed by the regulations, the prescribed amount.(2) The Director-General may disregard subsection (1) in the case of successive failures to account by a licensee, to the extent that the Director-General is satisfied that the failures are not connected.
(1) The Director-General may cause to be published a notice relating to a defaulting licensee and fixing a date within which claims must be made under this Part.(2) The notice is to be published in a newspaper circulating in the district in which the defaulting licensee is or was carrying on business, and also in a newspaper circulating in Sydney. One newspaper may satisfy both requirements.
64N Action after advertisement
(1) Any claim not made in writing on or before the date fixed under section 64M is barred, unless the Director-General otherwise determines.(2) After the date fixed under section 64M, the Director-General may distribute compensation in accordance with this Part, having regard only to judgments obtained and claims allowed against the Compensation Fund.
On payment out of the Compensation Fund in settlement in whole or in part of a claim under this Act, the Crown is subrogated, to the extent of the payment, to all the rights and remedies of the claimant against the licensee, or the former licensee, in relation to whom the claim arose, or any other person.
(1) The Director-General may, at any time and from time to time, require the production of documents necessary to support any claim under this Act, or available for that purpose, or for the purpose of exercising functions in respect of a defaulting licensee.(2) The Director-General may reject a claim if documents are not produced as required.
64Q Satisfaction of claims and judgments
(1) A claim or judgment against the Compensation Fund can only be satisfied to the extent of money in the Compensation Fund (either then or at a later time). No other money or property (whether of the Crown or otherwise) is available for that purpose.(2) If:(a) a number of claims or judgments (or both) against the Compensation Fund cannot be satisfied because of an insufficiency of money in the Compensation Fund, or(b) the total amount of claims or judgments (or both) exceeds the relevant aggregate sum (as referred to in section 64L),the Director-General has an uncontrolled discretion to determine the division and allocation of the available money among the various parties, and whether or not to the exclusion of any one or more of them.