Part 3 General conduct of licensees and registered persons
Division 1 Place and name of business
28 Registered office and address
(1) A licensee must have a registered office within New South Wales.(2) A licensee who carries on the business of an agent pursuant to a licence or other authorisation under the laws of another State at an office (the interstate office) that is within 50 kilometres of New South Wales may have the licensee’s registered office at the interstate office (even though it is not in New South Wales). The powers of an authorised officer under this Act may be exercised at the interstate office.(3) The address specified in an application for a licence as the address at which the applicant proposes to carry on business (or, in the case of a licensee carrying on business at more than one place, the address specified in the application as the licensee’s principal place of business) is taken to be the registered office of the licensee.(4) Notice of any change in the location of the registered office must be lodged by the licensee with the Director-General within the time prescribed by the regulations.Maximum penalty: 50 penalty units.
29 Display of name at registered office
(1) A licensee must display legibly and conspicuously outside the licensee’s registered office and any other place at which the licensee’s business as a licensee is carried on:(a) the licensee’s name and description as a licensee, and(b) a description of the kind of licence or licences held by the licensee.(2) In addition, a licensee that is a corporation must display legibly and conspicuously:(a) outside the corporation’s registered office, the name of the person in charge of the corporation’s registered office, and(b) outside any other place at which the business of the corporation is carried on, the name of the person in charge at that place.(3) A person must not display or exhibit outside or near the person’s office, house or place of business any sign or other matter that indicates or implies that the office, house or place of business is that of a person licensed as a kind of agent under this Act unless the person is licensed as an agent of that kind.Maximum penalty: 50 penalty units.
(1) A licensee must not, either alone or together with other persons, carry on business as a licensee under a name or advertise or hold out that the licensee carries on business as a licensee under a name unless:(a) the name consists of the name of the licensee and the name of each other person, if any, with whom the licensee is carrying on, or advertising or holding out that the licensee is carrying on, business as a licensee, or(b) the name is a business name registered under the Business Names Registration Act 2011 of the Commonwealth in relation to the licensee and each other person, if any, with whom the licensee is carrying on, or advertising or holding out that the licensee is carrying on, business as a licensee.Maximum penalty: 50 penalty units.
(2) The name of a licensee (other than a corporation) consists of the licensee’s full name, or the licensee’s surname (or family name) together with:(a) the licensee’s other name or names, or(b) the initial or initials of the licensee’s other name or names, or(c) a combination of one or more of the licensee’s other name or names and the initial or initials of the licensee’s remaining other name or names, or(d) the other name or names by which the licensee is commonly known or the initial or initials by which the licensee is commonly known or any combination of one or more of those names or initials.(3) The name of a licensee that is a corporation consists of the corporate name of the corporation.(4) The Director-General may, by notice in writing to a licensee, direct that the licensee must not carry on business under a specified business name, being a name that:(a) is the same as, or is a name closely resembling, the name under which a person who is a disqualified person or whose licence has been cancelled under or in pursuance of this Act was carrying on business immediately before the person became a disqualified person or the person’s licence was cancelled, or(b) implies or is capable of being construed as implying that the licensee is the successor in the business, or in any way interested or concerned in continuing the business as a licensee, of a person who is a disqualified person or whose licence has been cancelled under or in pursuance of this Act, or(c) is, in the opinion of the Director-General and in the circumstances of any particular case, undesirable as being contrary to the public interest.(5) A licensee must not contravene a direction under subsection (4).Maximum penalty: 50 penalty units.
(6) The provisions of this section are intended to operate as referred to in sections 12 (2) (e), 19 (5) and 20 (3) of the Business Names Registration Act 2011 of the Commonwealth.Note. Section 12 (2) (e) of the Business Names Registration Act 2011 of the Commonwealth (the Commonwealth Act) provides that the business names legislation referred to in that section is not intended to exclude or limit the concurrent operation of a law of a State that imposes obligations on an entity or class of entities that are in addition to obligations imposed under that Act.Sections 19 (5) and 20 (3) of the Commonwealth Act also provide that an entity does not commit an offence under those sections concerning the inclusion or display of registered business names in written communications and at places of business if the inclusion, use or display of a business name in such a communication or at such a place would be contrary to a law of a State.
Division 2 Business practices and supervision
31 Each place of business to be in charge of licensee
(1) An individual who carries on business under a licence at more than one place of business must employ at each of those places of business (except the place at which the licensee is personally in charge) as the person in charge of business at that place a person who is the holder of a licence that an individual is required to hold to carry on that business.(2) A corporation that holds a corporation licence must employ as the person in charge at each place of business at which the corporation carries on business under the licence a person who is the holder of a licence that an individual is required to hold to carry on that business.(3) A licensee must not employ a person to be the person in charge of business at a place of business of the licensee if the person is also employed to be the person in charge of business at another place of business of the licensee or at a place of business of another licensee.(4) A person employed as the person in charge of business at a place of business of a licensee must not exercise functions or provide services on behalf of 2 or more licensees at that place (whether corporations or individuals) unless those licensees are in partnership.(5) The Director-General may grant a person an exemption from a provision of this section. The exemption may be granted unconditionally or subject to conditions. The Director-General may at any time by notice in writing to a person granted an exemption revoke the exemption or vary the conditions of the exemption.(6) The regulations may specify the matters to be taken into account by the Director-General in considering whether to grant a person an exemption from a provision of this section.(7) A requirement of this section that the person employed as the person in charge of business at a place of business must be the holder of a licence that an individual is required to hold to carry on that business does not require the person to be accredited as an auctioneer under section 21 merely because the business includes the business of an auctioneer.Maximum penalty:
(a) 200 penalty units in the case of a corporation, or(b) 100 penalty units in any other case.
32 Duty of licensee and person in charge to properly supervise business
(1) A licensee must properly supervise the business carried on by the licensee.(2) A licensee employed by another licensee (the principal licensee) as the person in charge of business at a place of business of the principal licensee must properly supervise the business of the principal licensee carried on at that place.(3) The requirement to properly supervise the conduct of business includes the following requirements:(a) a requirement to properly supervise employees engaged in the business,(b) a requirement to establish procedures designed to ensure that the provisions of this Act and any other laws relevant to the conduct of that business are complied with,(c) a requirement to monitor the conduct of business in a manner that will ensure as far as practicable that those procedures are complied with.(4) The Director-General may from time to time issue and notify to licensees guidelines as to what constitutes the proper supervision of the business of a licensee. A failure to comply with the requirements of any such guidelines in connection with the supervision of a business constitutes a failure to properly supervise the business.Maximum penalty:
(a) 200 penalty units in the case of a corporation, or(b) 100 penalty units in any other case.
33 Licensee not to share commission with certain persons
(1) A licensee must not enter into an arrangement with or act in conjunction with a person that the licensee knows to be an unlicensed person (other than an employee in the licensee’s business as a licensee) whereby the unlicensed person is entitled to a share of the commission, fee, gain or reward payable to the licensee in respect of any transaction by or with him or her as a licensee or generally.Maximum penalty:
(a) 100 penalty units in the case of a corporation, or(b) 50 penalty units in any other case.(2) In this section:corresponding Act means an Act of another State or a Territory that is declared by the regulations to be a corresponding Act for the purposes of this section.
unlicensed person means a person who is not licensed under this Act or a corresponding Act.
34 Non-commercial subagency agreements to be in writing
(1) An agreement between licensees to share any commission, fee, gain or reward paid or payable to a licensee in respect of any services performed by him or her as a licensee is unenforceable unless the agreement is in writing, is signed by the licensees and contains such terms (if any) as may be prescribed by the regulations.(2) Any provision in, or applying to, such an agreement and purporting to exclude, modify or restrict the operation of the terms (if any) required by this section to be contained in the agreement has no force or effect.(3) A licensee who enters into an agreement a provision of which is unenforceable because of this section is guilty of an offence.Maximum penalty: 50 penalty units.
(4) This section does not apply to:(a) an agreement between licensees who are in partnership with one another or in the relationship of employer and employee with one another, or(b) an agreement, transaction, circumstance or person prescribed by the regulations as exempt from this section or an agreement, transaction, circumstance or person of a class or description prescribed by the regulations as exempt from this section, or(c) an agreement in respect of services relating to commercial land, being land used or intended to be used solely or principally for commercial, business or industrial purposes, but not including land used or intended to be used solely or principally for agricultural or pastoral purposes.
(1) A licensee who enters into a franchising agreement in connection with the conduct of the licensee’s business as licensee must give notice of the agreement to the Director-General. The notice must be in the form approved by the Director-General and must be given within 30 days after the agreement is entered into.Maximum penalty: 100 penalty units.
(2) The franchisor under a franchising agreement must notify the Director-General in writing within 7 days after becoming aware of any failure to account by a licensee who is a party to the franchising agreement.Maximum penalty: 100 penalty units.
(3) In this section:failure to account has the same meaning as in Part 9 (Management and receivership).
franchising agreement means an agreement whereby a licensee is authorised to carry on business under any name in consideration of any other person entitled to carry on business under that name receiving any consideration whether by way of a share in the profits of the licensee’s business or otherwise.
36 Review of commission and fees
(1) An action or other proceedings cannot be commenced by a licensee for the recovery of remuneration or any sum as reimbursement for expenses until the expiration of 28 days after a statement of claim has been served personally or by post on the person to be charged with the remuneration or expenses.(2) The statement of claim must be in writing, set out the amount claimed and contain details of the services performed by the licensee in respect of which the remuneration or expenses are claimed.(3) If money has been paid to or is or has been retained by a licensee (out of money received by or paid to the licensee) in respect of any transaction by or with the licensee as a licensee and has been so paid or retained as remuneration or as reimbursement for expenses in connection with the transaction, the person paying the money or the person who would be entitled to the money had the money not been retained, may require the licensee to furnish the person with an itemised account of the transaction in accordance with the regulations.(4) A person who is served with a statement of claim under this section or is provided with an itemised account of a transaction as provided by this section may apply to the Tribunal for the determination of a consumer claim within the meaning of Consumer Claims Act 1998 in relation to:(a) the entitlement of the licensee to the whole or any part of the amount specified in the statement of claim or the itemised account, or(b) whether the whole or any part of the amount is reasonable,or both.(5) For the purpose of the application of the Consumer Claims Act 1998 to that person, a reference in that Act to a consumer is taken to include a reference to that person.(6) The Tribunal has jurisdiction to hear and determine any such consumer claim despite:(a) the terms or conditions of any agreement or contract entered into between the licensee and the applicant, and(b) the amount being more or less than the maximum amount (if any) of remuneration to which a licensee is entitled under this Act.(7) This section does not limit the Consumer Claims Act 1998.(8) In this section:expenses means expenses or charges incurred in connection with services performed by a licensee in his or her capacity as a licensee.
remuneration means remuneration by way of commission, fee, gain or reward for services performed by a licensee in his or her capacity as a licensee.
Tribunal means the Tribunal under the Consumer Claims Act 1998.
37 Rules of conduct for licensee’s business
(1) The regulations may prescribe rules of conduct to be observed in the course of the carrying on of business or the exercise of functions under a licence or certificate of registration.(2) A licensee or registered person who without reasonable excuse contravenes a rule of conduct prescribed for the purposes of this section is guilty of an offence.Maximum penalty:
(a) 100 penalty units in the case of a corporation, or(b) 50 penalty units in any other case.
38 Undertakings by licensees and registered persons
The Director-General may accept a written undertaking from the holder of a licence or certificate of registration as to the manner in which the holder will exercise functions under the licence or certificate of registration.Note. Part 12 provides that a breach of such an undertaking is grounds for taking disciplinary action against a person.
39 Duty of licensee to notify defalcation
(1) A licensee must notify the Director-General as soon as practicable after becoming aware of any failure to account by the licensee.Maximum penalty: 50 penalty units.
(2) In this section:failure to account has the same meaning as in Part 9 (Management and receivership).
40 Industry association to report defalcation
A body engaged in the provision of services to agents as an industry association or similar undertaking must notify the Director-General in writing within 7 days after becoming aware of any failure to account by a licensee.Maximum penalty: 100 penalty units.
41 Liability of licensee for acts of employees
A licensee who employs a person at any place of business of the licensee is responsible, in tort and in contract, for anything done or not done by the person:(a) within the scope of the employee’s authority, or(b) for the benefit, or the purported or intended benefit, of the licensee or the licensee’s business.
42 Licensee to keep records of certain employees
(1) A licensee must make and keep a record of the name and residential address of each employee that the licensee employs as a real estate salesperson, stock and station salesperson, business salesperson or registered manager.(2) The licensee must keep the record for at least 3 years after the person ceases to be an employee.(3) The licensee must keep the record in the form of a register of employees and that register must be kept at the place of business of the licensee at which the employee is employed or at such other place as the Director-General may approve.Maximum penalty: 50 penalty units.
43 Duty of licensee not to employ certain persons
(1) A licensee must not employ a person in any capacity in connection with the carrying on of the business conducted by the licensee if the person:(a) is a disqualified person (other than a person whose disqualification is on a ground that does not disqualify the person from eligibility to hold a certificate of registration), or(b) has had his or her licence or certificate of registration suspended or cancelled under this Act (unless a licence or certificate of registration has subsequently been granted to the person and is not suspended or cancelled), or(c) has had an application for a licence or certificate of registration refused on the ground that the person was not a fit and proper person to hold a licence or certificate of registration (unless a licence or certificate of registration has subsequently been granted to the person and is not suspended or cancelled).Maximum penalty: 50 penalty units.
(2) It is a defence to a prosecution for an offence under this section if the licensee establishes that the licensee did not know, and could not reasonably be expected to have known after diligent inquiry, that the person was a person whose employment by the licensee was prohibited by this section.
44 Duty of licensee to notify disqualification of employee
A licensee must notify the Director-General in writing within 7 days after becoming aware that a person employed by the licensee has become a disqualified person (other than a person whose disqualification is on a ground that does not disqualify the person from eligibility to hold a certificate of registration).Maximum penalty: 50 penalty units.
45 Employees required to notify disqualification
A person employed by a licensee must notify the licensee within 7 days after the person becomes a disqualified person (other than a person whose disqualification is on a ground that does not disqualify the person from eligibility to hold a certificate of registration).Maximum penalty: 50 penalty units.
Division 4 Conflicts of interest
46 Financial and investment advice by real estate agents
(1) The regulations may make provision for or with respect to requiring a real estate agent who provides financial or investment advice to a person in connection with the sale or purchase of land to provide to the person specified information or warnings.(2) A real estate agent who fails to comply with a requirement of the regulations under this section is guilty of an offence.Maximum penalty: 200 penalty units.
47 Duty of disclosure to client and prospective buyer of land
(1) A buyer’s or seller’s agent acting on the sale or purchase of land must disclose the following to the person for whom the agent is acting (the client) and (in addition, in the case of the seller’s agent) any prospective buyer of the land:(a) any relationship, and the nature of the relationship (whether personal or commercial), the agent has with anyone to whom the agent refers the client or a prospective buyer for professional services associated with the sale or purchase,(b) whether the agent derives or expects to derive any consideration, whether monetary or otherwise, from a person to whom the agent has referred the client or a prospective buyer and, if so, the amount or value of the consideration,(c) the amount, value or nature of any benefit of which the agent is aware that a person to whom the agent has referred the client or a prospective buyer has received, receives, or expects to receive in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of the land.Note. The following are examples of relationships for the purposes of subsection (1) (a):(a) a family relationship,(b) a business relationship, other than a casual business relationship,(c) a fiduciary relationship,(d) a relationship in which 1 person is accustomed, or obliged, to act in accordance with the directions, instructions, or wishes of the other.The following are examples for the purposes of subsection (1) (c) of persons who may receive a benefit:
(a) seller,(b) finance broker,(c) financial adviser,(d) financier,(e) property valuer,(f) Australian legal practitioner,(g) real estate agent.Maximum penalty: 200 penalty units.
(2) Disclosure to a person is effective for the purposes of subsection (1) only if:(a) it is given to the person in a form approved by the Director-General, and(b) it is acknowledged by the person in writing on the form, and(c) it is given and acknowledged at the time the agent refers the client or prospective buyer to a person for professional services associated with the sale or purchase of land and before a contract for the sale of the residential property is entered into.(3) In this section:benefit means monetary or other benefit.
buyer’s agent means:
(a) a real estate agent acting for a buyer of land, or(b) a real estate salesperson acting for that real estate agent.prospective buyer means a person who there are reasonable grounds to believe is a potential or likely buyer of land (whether or not the person has made an offer to buy the land).
seller’s agent means:
(a) a real estate agent acting for the vendor of land, or(b) a real estate salesperson acting for that real estate agent.
48 Duty not to act for both buyer and seller of land
(1) A licensee must not act in his or her capacity as licensee on behalf of both the buyer and the seller of land at the same time.(2) A licensee must not enter into agency agreements in respect of the purchase or sale of land if the performance of services by the licensee under the agreements will or can result in the licensee acting in his or her capacity as licensee on behalf of both the buyer and the seller of the land at the same time.Maximum penalty:
(a) 200 penalty units in the case of a corporation, or(b) 100 penalty units in any other case.
49 Restrictions on licensee obtaining beneficial interest in property
(1) A real estate agent who is retained by a person (the client) as an agent for the sale of property must not obtain or be in any way concerned in obtaining a beneficial interest in the property.Maximum penalty: 200 penalty units or imprisonment for 2 years, or both.
(2) A real estate salesperson employed by the real estate agent must not obtain or be in any way concerned in obtaining a beneficial interest in the property.Maximum penalty: 200 penalty units or imprisonment for 2 years, or both.
(3) A person does not contravene this section by obtaining a beneficial interest in property if:(a) before the person obtains the interest, the client consents in writing in a form approved by the Director-General to the person obtaining the interest, and(b) the person acts fairly and reasonably in relation to the obtaining of the interest, and(c) no commission or other reward is payable to the person in relation to the transaction by which the interest is obtained, unless the client consents in writing in a form approved by the Director-General to the commission or other reward being paid.(4) Without limiting this section, a person is considered to obtain a beneficial interest in property if:(a) the person or a close relative of the person obtains a beneficial interest in the property, or(b) a corporation having not less than 100 members and of which the person or a close relative of the person is a member, or a subsidiary of such a corporation, obtains a beneficial interest in the property, or(c) a corporation of which the person or a close relative of the person is an executive officer obtains a beneficial interest in the property, or(d) the trustee of a discretionary trust of which the person or a close relative of the person is a beneficiary obtains a beneficial interest in the property, or(e) a member of a firm or partnership of which the person or a close relative of the person is also a member obtains a beneficial interest in the property, or(f) the person or a close relative of the person has, directly or indirectly, a right to participate in the income or profits of a business carried on for profit or gain and another person carrying on that business obtains a beneficial interest in the property.(5) Without limiting this section, each of the following is considered to constitute the obtaining of a beneficial interest in property:(a) purchasing property,(b) obtaining an option to purchase property,(c) being granted a general power of appointment in respect of property.(6) In this section:close relative of a person means:
(a) a spouse of the person, or(b) an existing or former de facto partner, or(c) a child, grandchild, sibling, parent or grandparent of the person, whether derived through paragraph (a) or (b) or otherwise, or(d) any other person who has a relationship with the person that is prescribed by the regulations as constituting the relationship of close relative for the purposes of this section.Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.property includes an interest in property.
Division 5 Advertisements and representations
50 Advertisements to include information about licensee
(1) A licensee must not publish (in a newspaper or otherwise) an advertisement relating to or in connection with the licensee’s business unless the advertisement includes the following:(a) if the licensee is an individual carrying on business in the licensee’s own name and is not a member of a partnership—the licensee’s name,(b) if the licensee is an individual carrying on business under a business name registered under any Act relating to the registration of business names—either the licensee’s name or that business name,(c) if the licensee carries on business as a member of a partnership—either the licensee’s name or the name of the partnership, or the name under which the partnership is registered under any Act relating to the registration of business names,(d) if the licensee is a corporation and the corporation is carrying on business in its own name—the name of the corporation,(e) if the licensee is a corporation and the corporation is carrying on business under a business name registered under any Act relating to the registration of business names—either its own name or that business name.(2) A licensee who has a relevant interest in the sale of real or personal property must not in the course of carrying on business as an agent on the sale publish or cause to be published an advertisement relating to or in connection with the proposed sale of the property unless the relevant interest is disclosed in the advertisement.(3) A licensee has a relevant interest in the sale of real or personal property if:(a) the licensee has an interest in the property as an owner of the property, or(b) the licensee is a corporation and a director of the corporation is an owner of the property, or(c) the licensee is a director of a corporation and the corporation is an owner of the property.Maximum penalty: 100 penalty units.
51 Publishing false or misleading advertisements
(1) A licensee must not publish or cause to be published in the course of carrying on business as a licensee any statement that:(a) is intended or apparently intended by the licensee to promote the sale or lease of any property, and(b) is materially false, misleading or deceptive (whether to the licensee’s knowledge or not).Maximum penalty: 200 penalty units.
(2) Without limiting the generality of subsection (1), a statement is taken to be false or misleading for the purposes of this section if it is of such a nature that it would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exist, whether or not the statement indicates that the state of affairs does exist.(3) A statement is published if it is:(a) inserted in any newspaper, periodical publication or other publication, or(b) publicly exhibited in, on, over or under any building, vehicle or place (whether or not a public place and whether on land or water), or in the air in view of persons being or passing in or on any street or public place, or(c) contained in any document gratuitously sent or delivered to any person or thrown or left upon premises in the occupation of any person, or(d) broadcast by radio or television, or(e) disseminated by means of an Internet website or electronic mail.(4) It is a defence to a prosecution against a person for an offence under this section if the person proves that:(a) the person took all reasonable precautions against committing the offence, and(b) the person believed on reasonable grounds that the statement was true or (in the case of a statement that would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exist) the person believed on reasonable grounds that the state of affairs existed, and(c) the person had no reason to suspect that the statement was false or misleading.(5) Despite any proceedings against a person for an offence under this section (whether resulting in a conviction or otherwise) the person remains liable to all civil proceedings as if the proceedings for an offence had not been taken.(6) This section is to be read as being in addition to and not in derogation from any enactment or law relating to false or misleading advertisements or other statements.
52 Misrepresentation by licensee or registered person
(1) A person who, while exercising or performing any function as a licensee or registered person, by any statement, representation or promise that is false, misleading or deceptive (whether to the knowledge of the person or not) or by any concealment of a material fact (whether intended or not), induces any other person to enter into any contract or arrangement is guilty of an offence against this Act.Maximum penalty: 200 penalty units.
(2) Without limiting the generality of subsection (1), a statement, representation or promise is taken to be false, misleading or deceptive if it is of such a nature that it would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exist, whether or not the statement, representation or promise indicates that the state of affairs does exist.(3) It is a sufficient defence to a prosecution for an offence under this section if the defendant proves that the defendant did not know, and had no reasonable cause to suspect, that the statement, representation or promise was false, misleading or deceptive.
53 Damages for misrepresentation or concealment
No term or provision of any agreement (whether entered into before or after the commencement of this section) for the sale and purchase of land or any interest in land operates to prevent the purchaser from claiming or being awarded damages or any other relief in respect of any misrepresentation or concealment in connection with the sale and purchase of the land or interest.
Division 6 Unjust conduct by licensees
(1) For the purposes of this Division, conduct of a licensee is unjust if it is conduct:(a) that is dishonest or unfair, or(b) that consists of anything done, or omitted to be done, in breach of contract, whether or not proceedings in respect of the breach have been brought, or(c) that consists of the contravention of this Act or the regulations or any other enactment administered by the Minister, or(d) that consists of the failure to comply with a condition or restriction to which the licence is subject or an order of the Tribunal applicable to the holder.(2) In this Division:Tribunal means the Consumer, Trader and Tenancy Tribunal established by the Consumer, Trader and Tenancy Tribunal Act 2001.
(1) Where it appears to the Director-General that a licensee has, in the course of carrying on business as a licensee, repeatedly engaged in unjust conduct, the Director-General may, with the consent of the Minister:(a) request the licensee to execute a deed in terms approved by the Director-General whereby the licensee gives undertakings as to:(i) the discontinuance of the unjust conduct, and(ii) the licensee’s future conduct, and(iii) the action the licensee will take to rectify the consequences of the licensee’s unjust conduct, or(b) apply to the Tribunal for an order under section 53D.(2) Where the Director-General makes a request or application under subsection (1), it is to be presumed, unless the contrary is proved, that the Director-General does so with the consent of the Minister.(3) Where a licensee executes a deed under this Division and observes the undertakings given in the deed, the Director-General may not apply for an order under section 53D by reason of any conduct to which the undertakings relate.
(1) When a licensee executes a deed under this Division, the Director-General must:(a) lodge a copy of the deed with the Registrar of the Tribunal, and(b) give a copy of the deed to the licensee who executed it.(2) The Director-General must retain all deeds and register the deeds in a Register of Undertakings kept by the Director-General and containing the prescribed particulars.(3) The Register of Undertakings may, at any reasonable time, be inspected by any person free of charge.(4) A licensee must observe undertakings given by the licensee in a deed executed under this Division.Maximum penalty: 100 penalty units.
(5) A prosecution for an offence under subsection (4) may not be instituted except by the Director-General with the leave of the Tribunal given when making an order in accordance with section 53D.
53D Restraint of unjust conduct
(1) Where, on the application of the Director-General, the Tribunal is satisfied after inquiry that a licensee has repeatedly engaged in unjust conduct, the Tribunal may order the licensee to refrain from engaging in unjust conduct in the course of carrying on business as a licensee and the licensee must comply with the order.(2) Where, on the application of the Director-General, the Tribunal is satisfied that a licensee has failed to observe an undertaking given by the licensee in a deed executed under this Division, the Tribunal may:(a) make an order under subsection (1) against the licensee, and(b) in addition, in the case of an undertaking to take action to rectify the consequences of the licensee’s unjust conduct, make an order to observe that undertaking within a time specified by the Tribunal when making the order.(3) If the licensee is a body corporate and the Tribunal is satisfied that the unjust conduct or breach of undertaking concerned was engaged in with the consent or connivance of a person who, at the time of the conduct or breach, was a director of, or a person concerned in the management of, the body corporate, the Tribunal may, in addition to any other order it may make under this section, make an order prohibiting the person from consenting to, or conniving at, engagement in unjust conduct, or a breach of an undertaking under this Division, by the body corporate or any other body corporate of which the person is a director or in the management of which the person is concerned.(4) The person to whom an order under subsection (3) relates must comply with the order.Maximum penalty: 100 penalty units.
(5) An order under this section may be made subject to such conditions (whether as to the duration of the order or otherwise) as the Tribunal thinks fit, including conditions as to the future conduct of the licensee and conditions specifying the action to be taken by the licensee to rectify the consequences of the licensee’s unjust conduct.
53E Variation etc of restraining order
The Tribunal may, on the application of the Director-General, vary or discharge an order made under this Division.