Division 1 Interpretation

90   Definitions

In this Part:

associate, in relation to a licensee, has the meaning given to it by section 91.

expenses of management or receivership means:

(a)  the remuneration payable to the manager or receiver, or

(b)  the expenses incurred in the course of the management or receivership, or

(c)  the costs of legal proceedings involved in the management or receivership, or

(d)  any reimbursement of the manager or receiver under this Part.

failure to account has the meaning given to it by section 92.

licensee includes:

(a)  a firm of licensees, and

(b)  a former licensee, and

(c)  in relation to anything done or omitted by a licensee—a deceased licensee and a deceased former licensee, and

(d)  except in relation to anything done or omitted by a licensee—the personal representative of a deceased licensee or a deceased former licensee.

Operating Account means the Office of Fair Trading Operating Account or a departmental account prescribed by the regulations for the purposes of this definition.

property of a licensee means:

(a)  money or other property received by the licensee on behalf of another person in the conduct of a conveyancing business, or

(b)  interest, dividends, income, profits or other property derived from or acquired with money or other property referred to in paragraph (a), or

(c)  documents and records of any description relating to anything referred to in paragraph (a) or (b) or to the licensee’s conveyancing business, or

(d)  any means by which any records referred to in paragraph (c) that are not written may be reproduced in writing,

and, in relation to a licensee whose conveyancing business is under management, includes any property of the business.

receivable property means property of a licensee or an associate of a licensee that is the subject of an order appointing a receiver, and includes property that, but for its having being taken, paid or transferred unlawfully or in breach of trust, would be receivable property.

receiver means a receiver appointed by the Supreme Court under this Part.

relevant associate means a licensee’s associate of whose property a receiver has been appointed under this Part.

relevant licensee means a licensee of whose property a receiver has been appointed.

91   Associates of a licensee

(1)  In this Part, a reference to a licensee’s associate is a reference to:

(a)  a partner of the licensee, or

(b)  an employee or agent of the licensee, or

(c)  a corporation, or a member of a corporation, partnership, syndicate or joint venture, in which the licensee or a person referred to in paragraph (a), (b) or (d) has a beneficial interest, or

(d)  a person who bears a prescribed relationship to the licensee or to a person referred to in paragraphs (a)–(c), or

(e)  a corporation that (if a person referred to in paragraphs (b)–(d) is a corporation) is a subsidiary of the person within the meaning of the Corporations Act, or

(f)  a person declared by the regulations to be an associate of the licensee or belonging to a class of persons so declared.

(2)  For the purposes of subsection (1) (d), a person bears a prescribed relationship to a licensee or other person if the relationship is that of:

(a)  a spouse, or

(b)  a de facto partner, being a person who has a de facto relationship (within the meaning of the Property (Relationships) Act 1984) with the licensee or other person, or

(c)  a child, grandchild, sibling, parent or grandparent, whether derived through paragraph (a) or (b) or otherwise, or

(d)  a kind prescribed by the regulations for the purposes of this section.

92   Failure to account

(1)  In this Part, failure to account means a failure by a licensee to account for, pay or deliver money or other valuable property:

(a)  that has been received by or entrusted to the licensee, or an associate of the licensee, in the course of the licensee’s conveyancing business, and

(b)  that is, in the case of money or other valuable property received by or entrusted to an associate of the licensee, under the direct or indirect control of the licensee,

      being a failure that arises from an act or omission of the licensee or associate.

(2)  The reference in the definition of failure to account in subsection (1) to money or other valuable property received by or entrusted to a licensee includes a reference to money or other valuable property that is received by or entrusted to the licensee as trustee, agent, bailee or stakeholder, or in any other capacity.