Division 355 Supreme Court may appoint receiver
(1) The Supreme Court may, on the application of the Director-General, appoint a receiver of all or any of the property of a licensee and may make the appointment whether or not the licensee has been notified of the application or is a party to the proceedings.(2) Such an application may be made by the Director-General only if:(a) the licensee has made a request to the Director-General for the appointment of a receiver, or(b) the Director-General has suspended or cancelled the licensee’s licence under section 13, or(c) the Director-General is of the opinion (whether as a consequence of a determination by the Director-General under the Property, Stock and Business Agents Act 2002 or otherwise) that there has been, or that there may have been, a failure to account by the licensee, or(d) the Director-General is of the opinion that a person is unable to obtain payment or delivery of property held by the licensee because the licensee:and if the Director-General is of the opinion that it is necessary for the application to be made in order to protect the interests of other persons.• is mentally or physically infirm, or• is bankrupt, has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, has compounded with his or her creditors or has made an assignment of his or her remuneration for their benefit, or• is an inmate within the meaning of the Crimes (Administration of Sentences) Act 1999, or• has died, or• has abandoned his or her conveyancing business,(3) Nothing in this Division prevents a manager of a licensee’s conveyancing business from being appointed as a receiver of the licensee’s property.
56 Receivership may extend to property of licensee’s associate
If, on the application of a receiver, the Supreme Court is satisfied that all or any of the property of a licensee’s associate should be declared to be receivable property, the Court may appoint the receiver to be the receiver of all or any of that property.
(1) Before commencing to hear an application for the appointment of a receiver, the Supreme Court may order from the precincts of the Court any person who is not:(a) an officer of the Court, or(b) a party, a legal representative of a party or a clerk of such a legal representative, or(c) a member of the same firm of licensees as the respondent, or(d) a person who is in the course of giving evidence, or(e) a person permitted by the Court to be present in the interests of justice.(2) The Supreme Court may, whether or not at the instance of a party, prohibit the publication of any report relating to the evidence or other proceedings or of any order made on the hearing of an application for the appointment of a receiver.
(1) On the appointment of a receiver, the Director-General is to cause a copy of the order of appointment to be served on:(a) the relevant licensee or relevant associate, and(b) any other person on whom the Supreme Court directs a copy of the order to be served.(2) The Supreme Court may give directions as to the manner of service and may dispense with service if it thinks fit.
59 Receiver may take possession of property
(1) A receiver may take possession of receivable property of the relevant licensee or relevant associate.(2) A person in possession, or having control, of receivable property must permit the receiver to take possession of the property if required by the receiver to do so.(3) If a person fails to comply with such a requirement, the Supreme Court may, on the application of the receiver, order the person to deliver the property to the receiver.(4) If, on the application of a receiver, the Supreme Court is satisfied that such an order has not been complied with, the Court:(a) may order the seizure of any receivable property located on premises specified in the order, and(b) may make such further order in the matter as it thinks fit.(5) An order under subsection (4) (a) authorises:(a) any police officer, or(b) the receiver, or a person authorised by the receiver, together with any police officer,to enter the premises specified in the order and to search for, seize and remove any property that appears to be receivable property.(6) An application by a receiver under subsection (3) may be made:(a) in the case of property in the possession, or under the control, of the relevant licensee or relevant associate—in the name of the receiver, or(b) in any other case—in the name of the relevant licensee or relevant associate.(7) A receiver must, as soon as possible, return property seized under this section if it transpires that it is not receivable property.
60 Information about receivable property
(1) A person who has information relating to receivable property, or property that a receiver believes on reasonable grounds to be receivable property, must give the information to the receiver if required by the receiver to do so.Maximum penalty: 50 penalty units.
(2) A licensee who has any such information may not refuse to comply with such a requirement merely because the information was obtained in confidence from a client or former client of the licensee.(3) A person who complies with a requirement under this section is not, merely because of that compliance, subject to any liability, claim or demand.(4) Information given to a receiver under this section is not admissible as evidence in any legal proceedings, other than:(a) proceedings taken by a receiver for the recovery of receivable property, or(b) proceedings taken under this Part, or(c) proceedings taken under Part 6 against a licensee:(i) if the information was given to the receiver otherwise than by the licensee, or(ii) if the information was given to the receiver by the licensee and is given in evidence in those proceedings with the licensee’s consent.
(1) A receiver who believes on reasonable grounds that money held in an account with a bank, building society or credit union is receivable property may serve on the bank, building society or credit union concerned an order (in this section referred to as a stop order) prohibiting operations on the account by any person other than the receiver or a person authorised by the receiver.(2) A stop order may be served by leaving it with the manager, accountant or other person appearing to be in charge at the branch of the bank, building society or credit union at which the account is kept, but has no effect unless there is annexed to it a copy of the order appointing the receiver.(3) A bank, building society or credit union served with a stop order:(a) must permit the receiver, or a person authorised by the receiver, to operate on the account to which the order relates, and(b) must not permit any withdrawal from the account otherwise than by, or by the authority of, the receiver.(4) A receiver may transfer money from an account the subject of a stop order to another account with the bank, building society or credit union in the name of the receiver to be dealt with as receivable property.(5) The bank, building society or credit union has the same obligations and protections:(a) in relation to an account the subject of a stop order, and(b) in relation to an account to which money in such an account is transferred,as if the receiver were the relevant licensee or relevant associate.
62 Improper dealing with property
A person must not, with intent to defeat the purposes of this Division:(a) operate on a bank, building society or credit union account, or(b) destroy or conceal receivable property or property that is likely to become receivable property, or(c) move receivable property, or property that is likely to become receivable property, from one place to another, or(d) deliver possession of receivable property, or property that is likely to become receivable property, to another person, or(e) deliver control of receivable property, or property that is likely to become receivable property, to another person.Maximum penalty: 20 penalty units.
63 Recovery of compensation for disposal of receivable property
(1) If receivable property has at any time been taken by, or paid or transferred to, a person unlawfully or in breach of trust in circumstances in which:(a) the person knew or believed at the time that the taking, payment or transfer was unlawful or in breach of trust, or(b) there was no consideration for the taking, payment or transfer, or(c) there was inadequate consideration for the taking, payment or transfer, or(d) the person became indebted or otherwise liable to the relevant licensee or relevant associate, or to a client of the licensee, as a result of the taking, payment or transfer,the receiver may recover from the person, as a debt, the amount taken, paid or transferred, the amount of the inadequacy or the amount of the debt, as the case may be.(2) A person from whom an amount is recovered under subsection (1) is not liable to any other person in respect of the amount.(3) If receivable property has at any time been paid or transferred unlawfully or in breach of trust to, or for the benefit of, a person in respect of a cause of action the person claims to have against another person, the receiver:(a) may recover from the person as a debt the amount of the payment or the value of the property, or(b) to the extent to which the full amount or value is not recovered from the person under paragraph (a)—may take such proceedings in relation to the claimed cause of action as the person could have taken.(4) If a receiver takes proceedings under subsection (3) (b) in relation to a cause of action claimed by a person, the receiver may not later take proceedings under subsection (3) (a) to recover property paid or transferred to the person in respect of the same cause of action.(5) If receivable property is used unlawfully or in breach of trust to discharge a debt or liability of a person, the receiver may recover from the person as a debt the amount that was required for the discharge of the debt or liability, reduced by the value of any consideration provided by the person for the discharge.(6) Recovery proceedings under this section may be taken in the name of the receiver or in the name of any other person who, had the receiver not been appointed, would have been entitled to take the proceedings.
64 Receiver may give certificate
(1) A receiver, or a person authorised by the Director-General, may give a certificate as to any one or more of the following:(a) the receipt of property by a licensee or a licensee’s associate, the nature and value of the property received, the date of its receipt by the licensee or associate and the identity of the person from whom it was received,(b) the taking or transfer of property, the nature and value of the property, the date of its taking or transfer and the identity of the person by whom it was taken or to whom it was transferred,(c) the payment of money, the amount of money paid, the date of the payment and the identity of the person who received the payment,(d) the entries made in the records of a licensee or a licensee’s associate and the truth or falsity of the entries,(e) the use of property unlawfully or in breach of trust.(2) A certificate under this section is admissible in any proceedings taken by a receiver under this Division and is evidence of the matters specified in the certificate.
65 Receiver taken to be beneficially entitled to property
(1) Proceedings taken under this Division in the name of a receiver in relation to any property may be so taken as if the receiver were beneficially entitled to the property.(2) If receivable property has been taken by, or paid or transferred to, a person or otherwise used unlawfully or in breach of trust, a receiver may take proceedings in the name of the receiver as if the receiver were beneficially entitled to the property at the time the property was so taken, paid, transferred or used.
66 Receiver may deal with property
(1) A receiver may deal with receivable property in any manner in which the relevant licensee or relevant associate could, had the receiver not been appointed, have dealt with it.(2) A receiver must, as soon as possible after receiving receivable property, vest the property in the person on whose behalf it was held by the relevant licensee or relevant associate.
(1) A receiver:(a) may prove, grant, claim or draw a dividend in respect of a debt that is receivable property, and(b) may take proceedings to recover damages for a tort committed in relation to receivable property, and(c) may give a receipt for money that is receivable property, and(d) may employ a person to advise or act in relation to receivable property,in the name of the receiver or in the name of the relevant licensee or relevant associate.(2) A receipt given to a person under subsection (1) (c) discharges the person from any responsibility to see to the application of the money for which the receipt was given.(3) A receiver is not, in the exercise of his or her functions as a receiver, a personal representative of a deceased licensee.
68 Notice to claim receivable property
(1) A receiver may give notice to:(a) the relevant licensee or relevant associate, or(b) any other person,that any claim the licensee, associate or other person has to receivable property must be submitted to the receiver within 1 month after the giving of the notice or within such longer period as is stated in the notice.(2) A claim submitted in response to such a notice must state:(a) full particulars of the property, and(b) the grounds of the claim.(3) A receiver may disregard a claim made by a licensee, a licensee’s associate or any other person who has been given a notice under this section if the claim is not made in accordance with the notice.(4) The relevant licensee or relevant associate is not entitled:(a) to enforce a claim to receivable property, or(b) except against a client—to the benefit of a lien against a document that is receivable property,unless all other enforceable claims against the property have been satisfied and the expenses of the receivership paid.
69 Lien for costs on receivable property
(1) If a licensee claims a lien for costs on receivable property, the receiver may serve on the licensee a written notice requiring the licensee to give to the receiver, within a specified period of not less than 1 month:(a) particulars sufficient to identify the property, and(b) a detailed bill of costs.(2) The notice, or a subsequent written notice served on the licensee, may require the licensee to apply for an assessment under Part 11 of the Legal Profession Act 1987 of the bill of costs within a reasonable time specified in the notice.(3) If the licensee requests the receiver in writing to allow access to receivable property to enable the licensee to have a bill of costs assessed, the time allowed for taxation does not begin to run until access is provided.(4) If a requirement of a notice under this section is not complied with, the receiver may disregard the claim in dealing with the property claimed to be subject to a lien.
(1) The Supreme Court may, on the application of a receiver, make such order as it thinks fit for the examination by the receiver of a licensee or other person in relation to receivable property.(2) On an examination under this section:(a) the licensee or other person may be represented by a solicitor or barrister, and(b) the Supreme Court may put, or allow to be put, to the licensee or other person such questions as it thinks fit.(3) The licensee or other person may be examined on oath or affirmation.(4) The licensee or other person is compellable to answer all questions asked in the course of the examination, including any question to which an objection is made on the ground that the answer would tend to incriminate the licensee or other person.(5) An answer given by a licensee or other person to a question to which such an objection is made is not admissible in any criminal proceedings other than proceedings relating to the falsity of the answer.
71 Property not dealt with by receiver
(1) If receivable property under the control of the receiver has not been dealt with in accordance with this Division, the receiver must cause notice of that fact to be given to the Director-General and:(a) if the Director-General so requires within 1 month after the notice is given—must transfer and deliver the property to the Director-General, or(b) if no such requirement is made—must transfer and deliver the property to the relevant licensee or relevant associate.(2) If property other than money is transferred or delivered to the Director-General under this section, the Director-General:(a) must deal with it as the Supreme Court directs, and(b) if the property is sold—must treat the proceeds as money paid to the Director-General under this section.(3) The Director-General must apply money paid to the Director-General under this section:(a) firstly—towards the satisfaction of wholly or partly unsatisfied claims against the relevant licensee, and(b) secondly—in payment of the expenses of the receivership.(4) Any money paid to the Director-General under this section that is surplus to the requirements of this section must be paid to the relevant licensee or relevant associate.
72 Investment of money by receiver
(1) A receiver may invest receivable property in any manner in which trustees are authorised by the Trustee Act 1925 to invest trust funds.(2) Income received from an investment under this section, and any profit made on the sale of such an investment, is receivable property.
73 Receiver may be reimbursed for damages
(1) The Director-General may reimburse a receiver for any damages or costs recovered against the receiver, or an employee or agent of the receiver, for any act or omission done or omitted in good faith and in the purported exercise of the receiver’s functions.(2) Reimbursement under this section is to be by way of payment from the Operating Account.
74 Payment of expenses of receivership
(1) So much of the expenses of receivership as have not otherwise been paid to the receiver are to be paid to the receiver by the Director-General from the Operating Account.(2) An amount paid under this section may be recovered by the Director-General from the relevant licensee as a debt.(3) If the Director-General and a receiver fail to agree on the remuneration to be paid to the receiver, the Supreme Court may, on the application of the Director-General or the receiver, determine the amount to be paid.(4) The Supreme Court, on the application of the relevant licensee:(a) may re-open any agreement between the Director-General and a receiver for remuneration of the receiver, and(b) may determine the amount to be paid.
75 Supreme Court may review expenses of receivership
(1) If, on the application of the relevant licensee, the Supreme Court is satisfied that the expenses of the receivership are excessive, the Supreme Court may order the taking of accounts between the Director-General and the receiver.(2) After the taking of accounts, the Supreme Court:(a) may relieve the relevant licensee from payment of any amount in excess of that determined by the Supreme Court to be fairly payable, or(b) if the receiver has been paid, or allowed on account, an amount that includes such an excess—may order the receiver to repay the excess.
76 Receivable property not to be attached
The receivable property of a relevant licensee or relevant associate is not liable to be taken in execution of any judgment, order or other process of any court or tribunal.
77 Applications for directions by receiver, licensee etc
(1) A receiver, a licensee or a licensee’s associate who holds receivable property, or a person who claims receivable property so held, may apply to the Supreme Court for directions as to the performance of the receiver’s functions.(2) On an application under this section, the Supreme Court may give such directions as it thinks fit.
78 Supreme Court may give general directions to receiver
(1) The Supreme Court:(a) may authorise a receiver to do such things in the exercise of the receiver’s functions as the Supreme Court considers appropriate, and(b) may give directions for the exercise of any such authority.(2) A receiver must exercise any authority so conferred in accordance with any direction so given.
79 Receiver to report to Supreme Court and Director-General
(1) A receiver must, at such times and in respect of such periods as the Supreme Court directs, submit reports on the receivership to the Supreme Court and the Director-General.(2) A report is to deal with such matters as the Supreme Court directs and with such other matters as the receiver considers appropriate to include in the report.(3) On the conclusion of a receivership, the receiver must lodge with the Supreme Court all of the receiver’s records that relate to the receivership.(4) Unless the Supreme Court orders their destruction, records lodged under this section are to remain in the custody of the Court.
80 Termination of appointment of receiver
(1) The Supreme Court:(a) may terminate the appointment of a receiver, and(b) may, if it thinks fit, appoint a new receiver either immediately or at any time within the next 14 days.(2) The former receiver must transfer or deliver the receivable property:(a) if a new receiver is appointed—to the new receiver in accordance with any directions given by the Supreme Court, or(b) if a new receiver is not appointed and if the relevant licensee or relevant associate so requires by notice in writing served on the receiver—to the licensee or associate.Maximum penalty: 10 penalty units.
(3) The receivable property must, in accordance with any directions given by the Supreme Court, be transferred or delivered as soon as possible after the former receiver’s appointment is terminated.(4) A former receiver is not required to comply with the requirements of this section unless:(a) the expenses of the receivership have been paid to the Director-General, or(b) the Director-General otherwise directs in relation to those expenses.(5) Subject to any direction given by the Supreme Court, a former receiver may transfer or deliver receivable property to the relevant licensee or relevant associate without having been given a notice under subsection (2) (b).
A person must not hinder, obstruct or delay a receiver in the exercise of his or her functions under this Division.Maximum penalty: 50 penalty units.