(1) In this Part:trust money means money received for or on behalf of any person by a licensee in connection with the licensee’s conveyancing business.
(2) A reference in this Part to a licensee includes a reference to a person who has ceased to be a licensee and to the personal representative of a licensee who has died.(3) In the application of this Part:(a) to a person who has ceased to be a licensee, a reference to money received for or on behalf of a person by a licensee is to be read as a reference to money received by that person for or on behalf of any other person in connection with his or her business as a licensee, and(b) to the personal representative of a licensee who has died, a reference to money received for or on behalf of a person by a licensee is to be read as a reference to money received by that licensee or personal representative for or on behalf of a person in connection with the business carried on by that licensee.
Division 2 Payment of trust money into trust account
53 Payment of trust money into trust account
(1) Money received for or on behalf of any person by a licensee in connection with the licensee’s conveyancing business:(a) is to be held by the licensee or (if the licensee is employed by a corporation) by the corporation, exclusively for that person, and(b) is to be paid to the person or disbursed as the person directs, and(c) until so paid or disbursed, is to be paid into and retained in a trust account (whether general or separate) at an authorised deposit-taking institution in New South Wales and approved by the Director-General for the purposes of this Part.(2) If the licence is held by a corporation, the trust account is to be in the name of the corporation and in any other case is to be in the name of the licensee or of the firm of licensees of which the licensee is a member.(3) Subsection (1) does not prevent a licensee from:(a) withdrawing or receiving, from trust money, money due to the licensee for costs so long as the procedure prescribed by the regulations is followed, and(b) holding, or disposing of, a cheque or other negotiable instrument payable to a third party if the licensee does so on behalf of a client and in accordance with directions given by the client, and(c) exercising a general retaining lien for unpaid costs and disbursements in respect of money in a trust account (other than money received subject to an express direction by the client with respect to the purposes for which the money is to be applied).(4) A lien referred to in subsection (3) (c):(a) may not be exercised for an amount in excess of the sum of the costs and disbursements unpaid, and(b) may not be exercised unless:(i) the licensee has disclosed to the client, in accordance with Division 5 of Part 3, the basis of the costs for the conveyancing work concerned, or(ii) if such a disclosure is not required to be made (as provided by sections 39 and 40 and any relevant regulations)—the licensee has served a bill of costs on the client.(5) The name of a trust account and the description of the trust account in the books and records of the licensee and also on all cheques drawn on the trust account:(a) must include the name of the licensee corporation, licensee or firm of licensees in whose name the trust account is kept, and(b) must include the words “Trust Account”, and(c) may include, at the end of the account’s name, a name or other matter to identify the person on whose behalf money in the account is held.(6) When opening a trust account at an authorised deposit-taking institution for the purpose of complying with this section, the licensee concerned must ensure that the authorised deposit-taking institution is notified in writing that the account is a trust account required by this Act.(7) A licensee must, within 14 days after closing a trust account, notify the Director-General in writing of the closure.Maximum penalty: 100 penalty units.
54 Approval of authorised deposit-taking institutions
(1) The Director-General may approve an authorised deposit-taking institution for the purposes of this Part and may revoke any such approval by notice in writing to the authorised deposit-taking institution.(2) The Director-General is not to approve an authorised deposit-taking institution for the purposes of this Part unless satisfied that the institution is able to discharge the obligations of an authorised deposit-taking institution under this Part.(3) An authorised deposit-taking institution that is the subject of an approval that is in force for the purposes of Part 7 of the Property, Stock and Business Agents Act 2002 is taken to have been approved by the Director-General for the purposes of this Part.
55 Trust money not available to pay licensee’s debts
(1) Trust money is not available for the payment of the debts of the licensee to any other creditor of the licensee, or liable to be attached or taken in execution under the order or process of any court at the instance of any other creditor of the licensee.(2) This section does not take away or affect any just claim or lien that any licensee may have against or upon trust money.
56 Licensee to notify trust account becoming overdrawn
A licensee must, within 5 days after becoming aware that a trust account of the licensee has become overdrawn, notify the Director-General in writing of:(a) the name and number of the account, and(b) the amount by which the account is overdrawn, and(c) the reason for the account becoming overdrawn.Maximum penalty: 100 penalty units.
57 Interest earned on trust accounts to be paid to Statutory Interest Account
(1) Sections 90 and 91 of the Property, Stock and Business Agents Act 2002 apply in respect of all money held in a general trust account under this Division as if:(a) the trust account were a trust account opened and kept under section 86 of that Act, and(b) the licensee who opened and keeps the trust account were a licensee under that Act.Note. Section 90 of the Property, Stock and Business Agents Act 2002 provides for interest earned on trust accounts to be paid to the Statutory Interest Account. Section 91 requires authorised deposit-taking institutions to notify the Director-General of certain matters with respect to trust accounts kept with the institution, including the number of trust accounts opened with the institution during a month and the names of the licensees who opened the accounts.(2) A licensee must, when opening a trust account at an authorised deposit-taking institution under this Division, ensure that the authorised deposit-taking institution is notified that the trust account is, for the purposes of sections 90 and 91 of the Property, Stock and Business Agents Act 2002, to be regarded as a trust account required by that Act. Such a notification is, for the purposes of those sections, to be regarded as a notification that the trust account concerned is required by that Act.
Division 3 Responsibilities of authorised deposit-taking institutions
When an authorised deposit-taking institution becomes aware that a trust account kept with it under this Part is overdrawn, the institution must as soon as practicable (and in any case within 5 business days) after becoming so aware inform the Director-General of the following by notice in writing:(a) the name and business address of the licensee concerned,(b) the name and number of the account,(c) the date on which the account became overdrawn,(d) the amount by which the account is overdrawn.Maximum penalty: 100 penalty units.
Within 5 business days of an authorised deposit-taking institution becoming aware that a cheque presented on a trust account kept with it under this Part has been dishonoured, the institution must, by notice in writing, inform the Director-General of the following:(a) the name and business address of the licensee concerned,(b) the name and number of the account,(c) the amount of the dishonour,(d) the date on which the cheque was dishonoured.Maximum penalty: 100 penalty units.
60 Annual certification by auditor
Not later than 31 May in each year, an authorised deposit-taking institution approved for the purposes of this Part must provide to the Director-General a certificate given by a registered company auditor (within the meaning of the Corporations Act) certifying as to the following:(a) that the institution has complied with the requirements of this Part in relation to trust accounts kept by it under this Part during the 12 month period ending on 30 April immediately preceding that 31 May,(b) the total amount of interest that the institution paid under this Part to the Director-General during that 12 month period in respect of those trust accounts for crediting to the Statutory Interest Account.Maximum penalty: 100 penalty units.
61 Protection of authorised deposit-taking institutions from liability
(1) An authorised deposit-taking institution:(a) does not incur liability, and is not obliged to make inquiries, in relation to any transaction concerning an account of a licensee kept with the institution or with some other financial institution, and(b) is, in relation to any such transaction, taken not to have any knowledge of a right of any person to money credited to such an account,unless it would incur such a liability, be obliged to make such inquiries or be taken to have that knowledge in relation to an account kept with it in respect of a person absolutely entitled to the money held in that account.(2) This section does not relieve an authorised deposit-taking institution from any liability or obligation that it would have apart from this Act.(3) An authorised deposit-taking institution at which a licensee keeps an account for clients’ money does not, as regards any liability that the licensee has to the institution (other than a liability relating to that account), have a right to any of the money held in that account, whether by way of set-off, counterclaim, charge or otherwise.
Division 4 Unclaimed trust money
62 Unclaimed trust money held by licensee
(1) A licensee who in the month of January in a year holds in a trust account kept by the licensee money that was received by the licensee more than 2 years before that month must furnish to the Director-General in that month a statement (an unclaimed money statement) showing particulars of:(a) the money so held, and(b) each person for whom or on whose behalf the money is held, and(c) the address last known to the licensee of each of those persons.(2) A statement under this section is to be in the form approved by the Director-General.
63 Unclaimed trust money held by former licensee or personal representative
(1) A former licensee, or the personal representative of a deceased licensee, who holds money in a trust account kept under this Act must furnish to the Director-General a statement giving particulars of:(a) the money held in the trust account as at the date on which the statement is furnished, and(b) the names of the persons for whom or on whose behalf the money is held, and(c) the address of each of those persons last known to the person furnishing the statement.(2) This statement is the first statement that the former licensee or personal representative is required to furnish and it is to be furnished within 3 months after the date on which the person ceased to be a licensee or became the personal representative of the deceased licensee.(3) The former licensee or personal representative must furnish a further statement (an unclaimed money statement) within 14 days after the period of 12 months has elapsed since the first statement was furnished.(4) The further statement is to give particulars of the same matters as the first statement and also include particulars of any payments made from the trust account or other place where money is held since the date of the first statement.(5) A statement under this section is to be in the form approved by the Director-General.(6) The regulations may exempt money or a class of money from the operation of this section.
64 Disposal of unclaimed money in trust accounts
(1) When the Director-General receives an unclaimed money statement under this Division, the Director-General is to:(a) send by post to each person for whom or on whose behalf any money referred to in the statement is held a notice (an individual notice) in writing addressed to the person at the person’s address shown in the statement stating the particulars of the money held for or on behalf of that person, and(b) cause notification to be published in the Gazette (a Gazette notification) stating the particulars of the money held for or on behalf of each of those persons.(2) Each individual notice and the Gazette notification is to state that, if the money is not paid out of the trust account or other place in which it is held within 3 months after the date of publication of the Gazette notification, the person holding the money will be required to pay it to the Director-General.(3) At any time after the expiration of that 3 months the Director-General may, by a notice in writing served personally or by post on the person by whom the money is held, require that person:(a) to pay to the Director-General any money referred to in the Gazette notification that has not been previously paid by that person out of the trust account or other place in which it is held, and(b) to furnish to the Director-General, within such period as may be specified in the notice to the person, a statement showing particulars of any payments made out of the money referred to in the Gazette notification since the unclaimed money statement was made.(4) The Director-General must pay any money received by the Director-General under this section into the Compensation Fund.(5) Within 2 months after 31 December in each year, the Director-General must pay into the Consolidated Fund all money received by the Director-General and paid into the Compensation Fund under this section during the period of 12 months ending on that 31 December (less any of that money that has been paid from the Compensation Fund to the person entitled to the money).(6) A person who fails to comply with the requirements of any notice served on the person under this section is guilty of an offence.Maximum penalty: 50 penalty units.
65 Repayment of unclaimed trust money
(1) The Director-General must, on application by a person entitled to an amount of money paid under this Division into the Compensation Fund or the Consolidated Fund, pay that amount to the person out of the Compensation Fund.(2) When an amount is paid out of the Compensation Fund in respect of an amount that has been paid into the Consolidated Fund, the Treasurer must, on application by the Director-General, pay that amount to the Director-General out of the Consolidated Fund (which is appropriated accordingly) for payment into the Compensation Fund.
Division 5 Information about trust accounts or transactions
66 Director-General may require information
(1) The Director-General may by notice in writing served on a licensee require the licensee to furnish to the Director-General in the manner required by the notice a statement in writing setting out full particulars as to any of the following:(a) the name of the trust account on which the licensee operates in accordance with this Act, the name of the authorised deposit-taking institution at which the account is current, the balance of the money standing to the credit of the account as at a date specified in the notice, and particulars of all cheques drawn on the account as at such date and not presented and duly paid,(b) any money paid by any person to the licensee or received by the licensee for or on behalf of any person in connection with the licensee’s business as a licensee and, if not still held by the licensee, the manner and time of its disbursement,(c) any transaction by or with the licensee as a licensee.(2) The licensee must comply with a notice under this section within 7 days after it is served on the licensee.(3) A notice under this section cannot relate to any transaction by or with the licensee more than 3 years before the notice is served on the licensee.
67 Person concerned in transaction may request itemised account
(1) A person directly concerned in any transaction by or with a licensee in connection with the licensee’s conveyancing business may request the licensee in writing to render to the person in the manner prescribed by the regulations an itemised account of the transaction.(2) The licensee must comply with the request within 14 days after the request is served on the licensee.(3) A person may not request an itemised account of a transaction that took place more than 6 months before the making of the request.
(1) A licensee must not fail without reasonable excuse (proof of which lies on the licensee) to comply with a requirement under this Division.(2) A licensee must not, in purported compliance with a requirement under this Division, furnish information that the licensee knows is false or misleading in a material particular.Maximum penalty: 100 penalty units.