Division 1 Keeping and inspection of records
(1) In this Act:licensee’s records means:
(a) records required to be kept by a licensee by or under this Act that are in the possession, custody or control of the licensee, and(b) records and documents in the possession, custody or control of a licensee that relate to any account (whether or not a trust account) kept by the licensee in connection with the licensee’s business as a licensee or to any transaction by or with the licensee in connection with the licensee’s business as a licensee.(2) If records or documents that were licensee’s records are in the possession, custody or control of a person as a former licensee, as the personal representative of a deceased licensee, or as a result of the transfer of the business of the licensee or otherwise, those records or documents are still licensee’s records for the purposes of this Division.(3) An account on which a strata managing agent operates for or on behalf of an owners corporation, or on which a community managing agent operates on behalf of an association constituted under the Community Land Development Act 1989 is taken to be an account kept by the agent in connection with his or her business as a licensee.(4) This Part extends to records in the possession, custody or control of a person even when the records are located outside the State.
104 Licensee to make and keep certain records
(1) A licensee must make the following records:(a) a record containing full particulars of all transactions by or with the licensee in connection with his or her business as a licensee,(b) such other records relating to the licensee’s business as a licensee as may be required by the regulations.(2) A record required by this section must be kept for at least 3 years after it is made.(3) The record must be kept:(a) by the licensee at the licensee’s registered office (while the licensee remains a licensee), or(b) if the licensee ceases to be a licensee, by the former licensee in his or her possession, custody or control unless the former licensee authorises some other person to have possession, custody or control of the record, or(c) by any other person who obtains possession, custody or control of the record whether as a result of being the personal representative of a deceased licensee or by transfer of the business of the licensee or otherwise.(4) The regulations may make provision for the manner and form in which a record required by this section is to be kept.(5) An entry in a record made under this section and kept at the registered office of a licensee is presumed, unless the contrary is proved, to have been made by or with the authority of the licensee.(6) A person who contravenes a provision of this section is guilty of an offence.Maximum penalty: 50 penalty units.
105 Inspection of licensee’s records
(1) A licensee’s records are at all reasonable times open to inspection by an authorised officer.(2) An authorised officer may require a person who has possession, custody or control of a licensee’s records:(a) to produce the licensee’s records for inspection,(b) to furnish all authorities and orders to financial institutions as may be reasonably required of the person.(3) If a licensee is absent from an office or place of business of the licensee, any employee or agent of the licensee for the time being having the apparent control or charge of the office or place of business is taken to have possession, custody or control of the licensee’s records at that office or place of business.(4) An authorised officer may take copies of or extracts from, or make notes from, any licensee’s records produced to the authorised officer under this section and for that purpose may take temporary possession of those records.
106 Inspection of records of financial institutions
(1) An authorised officer may serve on an authorised deposit-taking institution with which a licensee has deposited any money in any account (whether the licensee’s own account or a general or separate trust account) a notice, in a form approved by the Director-General and signed by the authorised officer:(a) certifying as to the reason for serving the notice, as provided by this section, and(b) requiring the authorised deposit-taking institution to produce to the authorised officer for inspection the records of the institution relating to the account.(2) Each of the following is a reason for serving a notice under this section:(a) the licensee cannot be located,(b) the licensee has left the State,(c) the licensee or any other person required to do so has failed to furnish any authority or order on the institution in accordance with a requirement under this Division,(d) the licensee has ceased to be a licensee,(e) the licensee has contravened a provision of Part 7 (Trust accounts).(3) An authorised officer may take copies of or extracts from, or make notes from, any records produced to the authorised officer under this section and for that purpose may take temporary possession of those records.
107 Power to require production of licensee’s records
(1) An authorised officer may give a written notice to a licensee or to another person that the officer reasonably believes has possession, custody or control of the licensee’s records requiring the licensee or person to produce the licensee’s records specified in the notice at the time and place specified in the notice.(2) An authorised officer may inspect any record produced in response to a notice under this section and may take copies of or extracts from, or make notes from, any such record.(3) A licensee does not contravene a provision of this Act if the licensee was unable to comply with the provision because an authorised officer retained possession of a record or document under this section.
108 Power to take possession of records to be used as evidence
(1) An authorised officer to whom any record is produced under this Part may take possession of the record if the authorised officer considers it necessary to do so for the purpose of obtaining evidence or protecting evidence from destruction.(2) If an authorised officer takes possession of any record under this section, the record may be retained by the officer until the completion of any proceedings (including proceedings on appeal) in which the record may be evidence.(3) The person from whom the record was taken must be provided, within a reasonable time after the record is taken, with a copy of the record certified by an authorised officer as a true copy.(4) A copy of a record provided under this section is, as evidence, of equal validity to the record of which it is certified to be a copy.
109 Additional requirements for managing agents
(1) A strata managing agent or community managing agent must keep a copy of the following instruments:(a) an instrument of appointment appointing the agent as strata managing agent or community managing agent, and(b) an instrument of delegation delegating to the agent any powers, authorities, duties or functions of an owners corporation or an association.(2) A copy of an instrument of appointment or delegation kept under this section is a licensee’s record for the purposes of this Part.(3) In this section:association means a community association, precinct association or neighbourhood association constituted under section 25 of the Community Land Development Act 1989.
owners corporation means an owners corporation constituted under the Strata Schemes Management Act 1996.
(1) A person must not:(a) wilfully delay or obstruct an authorised officer in the exercise of the authorised officer’s functions under this Division, or(b) fail to comply with a requirement under this Division to produce a record or document in the person’s possession, custody, or control, or(c) fail to comply with a requirement under this Division to furnish any authority or order reasonably required of the person under this Division, or(d) in purported compliance with a requirement under this Division produce a document or record knowing it to be false or misleading in a material particular.Maximum penalty: 100 penalty units.
(2) A court that convicts a person of an offence under this section may, in addition to any penalty imposed, order the person to produce the records in respect of which the offence occurred to the Director-General or an authorised officer within such time as the court specifies in the order.(3) A person who fails to produce a record in accordance with an order of a court made under this section is guilty of an offence punishable by a penalty not exceeding 10 penalty units in respect of each day that the failure continues.
Division 2 Audit of licensee’s records
(1) A person who is a licensee, a former licensee or the personal representative of a licensee must, within 3 months after the end of the audit period applicable to the person:(a) cause the records and documents relating to any money held during that period in a trust account kept by the person in accordance with this Act to be audited by a person qualified to act as an auditor for the purposes of this Division, and(b) lodge the auditor’s report on the audit with the Director-General.(2) The Director-General may in a particular case or class of cases by order in writing extend the period of 3 months under subsection (1).(3) The person must retain a copy of the auditor’s report on the audit for a period of three years after the date on which the report was made.(4) The auditor’s report is to be in a form approved by the Director-General and is to be signed by the auditor.Maximum penalty:
(a) 100 penalty units in the case of a corporation, or(b) 50 penalty units in any other case.
(1) The audit period applicable to a person is the year ending on 30 June or such other period as the Director-General may fix in respect of the person under this section.(2) The Director-General may by order in writing served on a person fix some other period as the audit period applicable to the person.(3) Such an order may be made on the application of the person or on the Director-General’s own initiative.(4) Such an order may be made with such limitations as to time or circumstances, and subject to such conditions, as the Director-General considers appropriate.
113 Statutory declaration required when no trust money held or received
A licensee who in the course of the audit period applicable to the licensee neither received nor held any money for or on behalf of any other person must, within the period of three months after that day, make and lodge with the Director-General a statutory declaration to that effect.Maximum penalty: 100 penalty units.
114 Audit obligations of partners
If the provisions of this Division are complied with by any one of the licensees in a partnership of licensees in relation to the audit of the records and documents of the partnership, each of those partners is taken to have complied with those provisions.
115 Qualifications of auditors
(1) A person is qualified to act as an auditor for the purposes of this Division if the person:(a) is a registered company auditor within the meaning of the Corporations Act, or(b) is a person who has been nominated by the person whose records and documents are to be audited and who has been approved by the Director-General by order in writing.(2) Such a person is not qualified to act as an auditor for the purposes of this Division if the person:(a) is or has at any time within 2 years before the last day of the period in respect of which the audit is to be made, been an employee or partner of the person whose records or documents are to be audited, or(b) is a licensee, or a shareholder in a corporation that is a licensee and that has not more than twenty shareholders.
(1) If an auditor in the course of making an audit for the purposes of this Division discovers that any breach of this Act or the regulations has been committed, that there is any discrepancy relating to the trust account to which the audit relates or that the records or documents concerned are not kept in such a manner as to enable them to be properly audited, the auditor must:(a) fully set out the facts so discovered by the auditor in the report made by the auditor for the purposes of the audit, and(b) forward a copy of the report to the Director-General.(2) An auditor, or an assistant of an auditor, appointed to make an audit for the purposes of this Division must not communicate any matter which may come to the auditor’s knowledge in the course of the audit to any person except:(a) in the course of the auditor’s duties as an auditor or assistant of an auditor, or(b) in accordance with this section, or(c) in the like circumstances and to the like extent as an officer of the Department is permitted under this Act to publish that information.(3) An auditor’s report under this Division (including under this section) relating to documents or records of any person, and any statutory declaration lodged with the Director-General under this Division, are available in the hands of the Director-General for inspection by an auditor appointed to carry out for the purposes of this Division any subsequent audit of the records or documents of that person.
Division 3 Freezing of accounts
In this Division:account means:
(a) a trust account in a licensee’s name with a financial institution, or(b) an account in a licensee’s name or in which a licensee has an interest with a financial institution, or(c) another account to which trust money is deposited.financial institution includes an approved deposit-taking institution.
holder of an account means the licensee or other person authorised to operate on the account.
licensee includes a former licensee and the personal representative of a deceased licensee.
trust money means money received for or on behalf of any person by a licensee (whether or not the money is deposited in a trust account required to be kept by a licensee).
118 Director-General may freeze licensee’s accounts in particular cases
(1) A direction under this Division may be given when it appears to the Director-General that any of the following persons has, or may have, stolen, misappropriated or misapplied trust money:(a) a licensee,(b) the person in charge of a licensee’s business at a place,(c) an employee of a licensee.(2) The Director-General may by direction in writing direct that:(a) if a claim has been made against the Fund concerning the trust money, all or part of the amount to the credit of a specified account be paid to the Director-General, or(b) an amount must not be drawn from a specified account other than with the Director-General’s written approval, or(c) a specified account may be operated only under specified conditions.(3) The direction must be given to each holder of the account and the financial institution at which the account is kept, and must identify the account to which it relates.(4) Any amount paid to the Director-General pursuant to such a direction must be paid into the Fund.
119 Financial institution must comply with direction
(1) A financial institution to which a direction under this Division is given (whether or not the direction has been given to anyone else) must not, while the direction is in force:(a) pay a cheque or other instrument drawn on the account concerned unless the cheque or instrument is also signed by the Director-General or a person authorised by the Director-General for the purposes of this section, or(b) give effect to another transaction on the account that is not authorised because of the direction.Maximum penalty: 500 penalty units.
(2) The signature of the Director-General or authorised person on a cheque or other instrument is sufficient evidence of the Director-General’s approval to draw an amount from the account to honour the cheque or other instrument.(3) A manager or principal officer in charge of an office or branch of the financial institution where an account is kept, or another officer of the financial institution, must not knowingly permit a contravention of this section by the financial institution.Maximum penalty: 100 penalty units or imprisonment for 12 months, or both.
(4) A person to whom a direction is given does not incur a civil liability to another person by reason only of complying with the direction.
120 Account not to be operated unless Director-General allows
After a direction under this Division has been given to the holder of an account, the holder must not (while the direction remains in force) sign a cheque or other instrument drawn on the account unless the cheque or other instrument has first been signed by the Director-General or a person authorised by the Director-General to sign the cheque or instrument.Maximum penalty: 100 penalty units or imprisonment for 12 months, or both.
121 Director-General may operate account
(1) The Director-General or a person authorised in writing by the Director-General (an authorised person) may operate on an account that is the subject of a direction under this Division if the holder of the account refuses to operate the account.(2) A statutory declaration made by the Director-General or authorised person to the effect that the account holder is refusing to operate on the account is sufficient evidence to the licensee’s financial institution of that fact.
(1) A direction remains in force until it is withdrawn.(2) The Director-General may withdraw a direction under this Division at any time.(3) When a direction is withdrawn, the Director-General is to give all persons who were given the direction a notice that the direction has been withdrawn. Failure to give notice does not affect the withdrawal of the direction.