Conveyancing Act 2004

Conveyancing Act 2004

An Act to regulate the business of conveyancing, to amend the Auctioneers and Real Estate Agents Act 1991 so as to provide for a guarantee fund for claims against conveyancers and also to amend the Legal Profession Act 1993

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Conveyancing Act 2004 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

(1)  In this Act –[Section 3 Subsection (1) amended by No. 25 of 2012, s. 4, Applied:12 Jul 2012]

[Section 3 Subsection (1) amended by No. 25 of 2012, s. 4, Applied:12 Jul 2012] [Section 3 Subsection (1) amended by No. 58 of 2016, Sched. 4, Applied:01 Apr 2017] [Section 3 Subsection (1) amended by No. 29 of 2022, s. 9, Applied:01 Jul 2023] approved institution means an authorised deposit-taking institution with a branch or head office in the State with which a scheme of arrangement that –

(a) relates in whole or in part to the keeping of trust accounts for the purposes of this Act; and

(b) is in force –

has been entered into under section 147 of the Property Agents and Land Transactions Act 2016 ;

[Section 3 Subsection (1) amended by No. 41 of 2010, s. 9, Applied:01 Jan 2011]

commission means any monetary consideration or any other form of consideration to which a monetary value may be assigned;

conveyancer means a person who is not a legal practitioner and who carries on a business that involves the preparation for fee or reward of –

(a) dealings within the meaning of the Land Titles Act 1980 ; or

(b) instruments for the purposes of any other Act or law as provided by an order made under subsection (2) ;

Court means the Magistrates Court (Administrative Appeals Division);

[Section 3 Subsection (1) amended by No. 29 of 2022, s. 9, Applied:01 Jul 2023] deemed registration means an entitlement to automatic deemed registration, within the meaning of the Mutual Recognition Act 1992 of the Commonwealth;

Director means the Director of Consumer Affairs and Fair Trading;

document means any record of information, and includes –

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

(d) a map, plan, drawing or photograph –

and a reference in this Act to a document includes a reference to –

(e) any part of the document; and

(f) any copy, reproduction or duplicate of the document or of any part of the document; and

(g) any part of such a copy, reproduction or duplicate;

fiduciary default means –

(a) a defalcation, misappropriation or misapplication of trust money held by a conveyancer; or

(b) the failure of a conveyancer to account for trust money held by the conveyancer; or

(c) a breach of any duty by a conveyancer as trustee in respect of trust money held by the conveyancer;

[Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008]

[Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] legal practitioner means an Australian legal practitioner;

[Section 3 Subsection (1) amended by No. 29 of 2022, s. 9, Applied:01 Jul 2023]

[Section 3 Subsection (1) amended by No. 29 of 2022, s. 9, Applied:01 Jul 2023] licence, in relation to the carrying on of business as a conveyancer, means –

(a) a licence that is issued and in force in accordance with Division 1 of Part 2 ; or

(b) a licence held by a person by virtue of deemed registration;

prescribed offence means –

(a) an offence involving dishonesty, whether committed in Tasmania or elsewhere; or

(b) an offence involving violence, whether committed in Tasmania or elsewhere; or

(c) an offence under Part V of the Poisons Act 1971 or a similar offence under the law of another State; or

(d) an offence relating to the possession and use of a firearm, or any other weapon, that would disqualify the applicant from holding a licence under the Firearms Act 1996 ; or

(e) an offence against this Act;

professional indemnity insurance means insurance against civil liability arising in connection with carrying on business as a conveyancer (whether the liability arises from an act or omission on the part of the insured conveyancer or on the part of another person);

regulations means regulations made and in force under this Act;

[Section 3 Subsection (1) amended by No. 29 of 2022, s. 9, Applied:01 Jul 2023] trust account means an account, maintained for the purposes of this Act in the State, in which trust money is required to be deposited by a conveyancer;

trust money, in respect of a conveyancer, means money –

(a) that is received by the conveyancer on behalf of another person when acting as a conveyancer; and

(b) to which the conveyancer is not wholly entitled.

(2)  The Minister may, by order published in the Gazette, extend the application of this Act to instruments prepared for the purposes of any other Act or law.

PART 2 - Regulation of Conveyancers

Division 1 - Licences

4.   Conveyancers to be licensed

[Section 4 Substituted by No. 29 of 2022, s. 10, Applied:01 Jul 2023] A person who is not a legal practitioner must not carry on business as a conveyancer for fee or reward unless –

(a) the person is the holder of a licence granted by the Director in accordance with this Division; or

(b) the person is the holder of a licence by virtue of holding deemed registration.

Penalty:  Fine not exceeding 200 penalty units or imprisonment for a term not exceeding 2 years, or both.

4A.   Deemed registration of conveyancers

[Section 4A Inserted by No. 29 of 2022, s. 10, Applied:01 Jul 2023]

(1)  In this section –

occupation has the meaning it has in section 4(1) of the Mutual Recognition Act 1992 of the Commonwealth;

participating jurisdiction has the meaning it has in section 4(1) of the Mutual Recognition Act 1992 of the Commonwealth.

(2)  A person who intends to carry on a business as a conveyancer in the State by virtue of holding deemed registration must notify the Director of the person’s entitlement to hold deemed registration before carrying on the business.

Penalty:  Fine not exceeding 10 penalty units.

(3)  A notification under subsection (2)  –

(a) must be in a manner approved by the Director; and

(b) must be in a form approved by the Director; and

(c) is to contain any information that the Director considers necessary.

(4)  If there is a change in the information provided in a notification to the Director under subsection (2) , the person referred to in that subsection must, as soon as is practicable, in a form approved by the Director, notify the Director of the change.

Penalty:  Fine not exceeding 10 penalty units.

(5)  A person who holds a licence by virtue of holding deemed registration must not carry on business as a conveyancer in the State unless the work is within the scope of the work that the person is authorised to carry on for that occupation in the relevant participating jurisdiction.

Penalty:  Fine not exceeding 10 penalty units.

(6)  If a person is found guilty of an offence against subsection (2) , (4) or (5) , the Director may –

(a) suspend or cancel the deemed registration held by the person; and

(b) disqualify the person from holding a licence by virtue of holding deemed registration for a specified period or until the person fulfils a specified condition.

(7)  The Director may, at any time, request a person, who is a licence holder by virtue of holding deemed registration, to provide the Director with any information that the Director requires in relation to the maintenance of the person’s skills and any continuing professional development undertaken by the person.

5.   Ineligibility to be licensed

(1)  [Section 5 Subsection (1) amended by No. 29 of 2022, s. 11, Applied:01 Jul 2023] A person is ineligible to apply for a licence under section 6 , or hold a licence by virtue of holding deemed registration, if –

(a) [Section 5 Subsection (1) amended by No. 29 of 2022, s. 11, Applied:01 Jul 2023] in the case of a person applying for a licence under section 6 , the person does not hold the prescribed qualifications and have the prescribed experience; or

(b) he or she is an undischarged bankrupt or a person who has made an arrangement with creditors that has not been carried out; or

(c) his or her licence has been suspended or cancelled under Part 4 ; or

(d) [Section 5 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] he or she is disqualified from acting as a legal practitioner under the Legal Profession Act 2007 or a corresponding law within the meaning of that Act; or

(e) [Section 5 Subsection (1) amended by No. 58 of 2016, Sched. 4, Applied:01 Apr 2017] he or she holds a licence under the Property Agents and Land Transactions Act 2016 ; or

(f) he or she has, within the preceding period of 5 years, been convicted in Tasmania or elsewhere of an indictable offence and sentenced to –

(i) imprisonment for a term or terms in the aggregate of 3 years or more; or

(ii) a period of detention for 3 years or more under a restriction order made under section 75(1)(e) of the Sentencing Act 1997 or an equivalent order made in any jurisdiction outside Tasmania.

(2)  For the purposes of subsection (1)(f)  –

(a) a conviction in respect of which a free pardon has been granted is to be disregarded; and

(b) a person who is on parole is taken to be serving a sentence of imprisonment.

6.   Application

(1)  [Section 6 Subsection (1) substituted by No. 29 of 2022, s. 12, Applied:01 Jul 2023] Subject to subsection (3) , a person who is eligible to hold a licence may apply to the Director for a licence.

(2)  An application for a licence –

(a) is to be in an approved form; and

(b) is to be accompanied by the prescribed fee.

(3)  [Section 6 Subsection (3) inserted by No. 29 of 2022, s. 12, Applied:01 Jul 2023] A person who is entitled to hold a licence by virtue of holding deemed registration is not required to make an application for the licence in accordance with this Act.

7.   Character report

[Section 7 Amended by No. 29 of 2022, s. 13, Applied:01 Jul 2023] On receipt of an application for a licence under section 6 , the Director must –

(a) forward the application to the Commissioner of Police; and

(b) request the Commissioner of Police to provide a report as to whether, in the opinion of the Commissioner, the applicant is a fit and proper person to hold a licence.

8.   Refusal of application

[Section 8 Substituted by No. 29 of 2022, s. 14, Applied:01 Jul 2023] After receiving a report from the Commissioner of Police under section 7(b) in respect of an application, the Director may refuse to grant a licence to the applicant only if the Director is satisfied that –

(a) the applicant is not a fit and proper person to hold a licence having regard to the report under section 7(b) ; or

(b) the applicant has been convicted of a prescribed offence; or

(c) if the applicant were the holder of a licence –

(i) there would be grounds for disciplinary action against the person under section 37 ; or

(ii) there would be grounds for suspension or cancellation of the licence under section 38 .

9.   Conditions of licence

[Section 9 Amended by No. 29 of 2022, s. 15, Applied:01 Jul 2023] The Director may grant an application for a licence subject to conditions, including (but not limited to) conditions of the following kind:

(a) a condition prohibiting the licensee from acting as a conveyancer in specified kinds of transactions;

(b) a condition prohibiting the licensee from acting as a conveyancer except in specified kinds of transactions;

(c) a condition requiring the licensee to undertake or complete a specified course of studies within a specified period of time;

(d) a condition requiring the licensee to undertake, by way of professional development, specified further education or training during the term of the licence.

10.   Grant of licence to unqualified person

If, during a period of 2 years after the commencement of this Act, the Director is satisfied that a person holds qualifications comparable to the prescribed qualifications and has experience comparable to the prescribed experience, the Director may, notwithstanding section 5 , grant a licence to that person, but in that case the Director must impose conditions on the type of work that he or she may undertake.

11.   Validity of licence

(1)  In this section –

conveyancer includes a conveyancer whose licence has been suspended.

(2)  [Section 11 Subsection (2) substituted by No. 29 of 2022, s. 16, Applied:01 Jul 2023] A licence granted by the Director under this Act is valid for the period of 3 years commencing on the date on which the licence is granted.

(2A)  [Section 11 Subsection (2A) inserted by No. 29 of 2022, s. 16, Applied:01 Jul 2023] A licence held by a person by virtue of holding deemed registration is valid for the period in respect of which the deemed registration is in force.

(3)  A licence ceases to be valid if –

(a) the conveyancer surrenders it to the Director; or

(b) [Section 11 Subsection (3) amended by No. 29 of 2022, s. 16, Applied:01 Jul 2023] it is suspended or cancelled in accordance with this Act or in accordance with an Act of another State or of a Territory; or

(c) the conveyancer dies; or

(d) the conveyancer ceases to be qualified to hold the licence.

12.   Form and content of licences

(1)  [Section 12 Subsection (1) amended by No. 29 of 2022, s. 17, Applied:01 Jul 2023] A licence granted by the Director under this Act –

(a) is to be in a form approved by the Director; and

(b) is to specify the full name and address of the conveyancer and, where applicable, the business name under which he or she proposes to carry on business as a conveyancer.

(2)  If there is any change in any matter specified in a licence under subsection (1)(b) , the conveyancer must, within 14 days after the change, notify the Director of the change in writing.

Penalty:  Fine not exceeding 10 penalty units.

(3)  [Section 12 Subsection (3) inserted by No. 29 of 2022, s. 17, Applied:01 Jul 2023] After receiving a notification under section 4A , the Director may provide, to a person who is entitled to hold a licence by virtue of holding deemed registration, a licence –

(a) in a form approved by the Director; and

(b) specifying any information that the Director considers relevant.

(4)  [Section 12 Subsection (4) inserted by No. 29 of 2022, s. 17, Applied:01 Jul 2023] If there is a change to the information specified in a licence provided under subsection (3) , the holder of the licence must, within 14 days after the change, notify the Director, in writing, of the change.

Penalty:  Fine not exceeding 10 penalty units.

Division 2 - Professional indemnity insurance

13.   Requirement for professional indemnity insurance

(1)  A person must, at all times when carrying on business as a conveyancer, be insured under a policy of professional indemnity insurance approved by the Director to a prescribed minimum amount.

(2)  [Section 13 Subsection (2) substituted by No. 29 of 2022, s. 18, Applied:01 Jul 2023] A conveyancer's licence –

(a) that is issued and in force in accordance with Division 1 of Part 2 , is taken to be suspended for any period for which the conveyancer is not insured as required under subsection (1) ; or

(b) that is held by a person by virtue of holding deemed registration, is taken to be suspended for any period for which the conveyancer is not insured as required under subsection (1) .

Division 3 - Duties of conveyancers

14.   Conflict of interest

(1)  A conveyancer must –

(a) disclose any conflict of interest arising in the course of his or her work to any person who may be affected by the matter; and

(b) take all reasonable steps to avoid any such conflict of interest.

Penalty:  Fine not exceeding 100 penalty units.

(2)  [Section 14 Subsection (2) amended by No. 58 of 2016, Sched. 4, Applied:01 Apr 2017] A person who has suffered loss arising from a conflict of interest on the part of a conveyancer may make an application for compensation under section 152 of the Property Agents and Land Transactions Act 2016 .

(3)  For the purposes of this section, a conveyancer is taken to have a conflict of interest in respect of a transaction if –

(a) the conveyancer is obliged, in fulfilling his or her duty to one party to the transaction, to withhold information or advice from another party that, by reason of the conveyancer's duty to that other party, he or she should not withhold; or

(b) for any other reason, the duties owed by the conveyancer to one party to the transaction conflict with the duties owed by the conveyancer to another party to the transaction; or

(c) the conveyancer has a personal or pecuniary interest in the transaction arising otherwise than from his or her services as a conveyancer.

15.   Prohibition on commissions

A conveyancer must not receive from any person other than a party to the transaction in respect of which the conveyancer is acting, or pay to any such person, a commission in respect of work carried out as a conveyancer.

Penalty:  Fine not exceeding 100 penalty units.

15A.   Prohibition on advertising while licence suspended

[Section 15A Inserted by No. 29 of 2012, s. 4, Applied:01 May 2015]

(1)  [Section 15A Subsection (1) amended by No. 29 of 2022, s. 19, Applied:01 Jul 2023] A person whose licence is suspended under this Act or an Act of another State or a Territory (the suspended licensee) must not, during the period of the suspension –

(a) advertise or in any way represent to the public, either expressly or by implication, that he or she is a licensed conveyancer; or

(b) cause or allow another person to advertise, or in any way represent to the public, either expressly or by implication, that the suspended licensee is a licensed conveyancer.

Penalty:  Fine not exceeding 100 penalty units.

(2)  [Section 15A Subsection (2) amended by No. 29 of 2022, s. 19, Applied:01 Jul 2023] A person who employs a person whose licence is suspended under any Act must not, during the period of the employee's suspension –

(a) advertise or in any way represent to the public; or

(b) cause or allow another person to advertise or in any way represent to the public –

either expressly or by implication, that the employee is a licensed conveyancer.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 100 penalty units; or

(b) an individual, a fine not exceeding 50 penalty units.

(3)  It is a defence in proceedings for an offence under subsection (2) if the defendant establishes that, at the time the advertisement was published or the representation was made, the defendant did not know that the employee's licence was suspended.

15B.   Certain undertakings to be enforceable

[Section 15B Inserted by No. 29 of 2012, s. 4, Applied:01 May 2015]

(1)  In this section –

affected person, in relation to an undertaking, means –

(a) the person to whom the undertaking was given; and

(b) if the person to whom the undertaking was given was acting as the agent of a principal, the principal;

undertaking means a promise or guarantee, given by a conveyancer in the course of carrying on business as a conveyancer, that an act will be done, or will not be done, by the conveyancer or another person.

(2)  An affected person in relation to an undertaking given by a conveyancer may, if the undertaking has not been carried out, apply to the Supreme Court or the Magistrates Court (Civil Division) for an order or orders to be made under subsection (3) in relation to the undertaking.

(3)  A court to which an application is made under subsection (2) in relation to an undertaking given by a conveyancer may, if it is satisfied that the undertaking has not been carried out, make one or more of the following orders in relation to the application:

(a) if the undertaking consists of a promise or guarantee by the conveyancer to do an act or to refrain from doing the act, an order that the conveyancer do the act or refrain from doing the act;

(b) such orders as the court thinks fit requiring the conveyancer to do an act, or refrain from doing an act, so as to place an affected person as near as practicable in the position that the affected person would have been in if the undertaking had been carried out;

(c) such orders as the court thinks fit, requiring the conveyancer to pay to an affected person, or to a client of the conveyancer, who has suffered, or is likely to suffer, loss because the undertaking has not been carried out, compensation for the loss.

16.   Conduct of other businesses

The regulations may prohibit a conveyancer from being employed in a class of business that is prescribed in the regulations.

PART 3 - Trust Accounts

Division 1 - Trust accounts

17.   Trust accounts

(1)  A conveyancer must –

(a) [Section 17 Subsection (1) amended by No. 29 of 2022, s. 20, Applied:01 Jul 2023] maintain a trust account in an approved institution with a branch or head office in this State; and

(b) deposit any money received for, or on behalf of, a client in that trust account; and

(c) keep that money in that trust account until it is paid as the client directs.

Penalty:  Fine not exceeding 100 penalty units.

(2)  A conveyancer must not use money in a trust account of the conveyancer –

(a) for the payment of debts of the conveyancer; or

(b) for the payment of any creditor of the conveyancer; or

(c) for an attachment or execution under an order of a court at the instance of any creditor of the conveyancer.

Penalty:  Fine not exceeding 100 penalty units.

(3)  The Director may, by notice in writing, require the holder or previous holder of a licence to provide any information that the Director considers necessary to investigate whether or not an offence has been committed under this section.

(4)  A conveyancer who becomes entitled to money held in the conveyancer's trust account in or towards satisfaction of the conveyancer's fees, costs or disbursements must, as soon as practicable and in any event within 3 months, transfer the money to an account maintained by the conveyancer for receipts other than trust money.

18.   Protection of trust money

(1)  The Director may, if he or she considers it necessary to do so to protect trust money held by a conveyancer, serve on an authorised deposit-taking institution in which the conveyancer maintains a trust account a notice, signed by the Director, that –

(a) gives details of the trust account; and

(b) instructs the authorised deposit-taking institution that, until the Director otherwise directs, it is not to permit any withdrawal to be made from the account without the Director's written consent.

(2)  An authorised deposit-taking institution must comply with an instruction contained in a notice served on it under subsection (1) .

Penalty:  Fine not exceeding 50 penalty units.

19.   Accounting documents to be kept

(1)  A conveyancer must keep documents which –

(a) correctly record and explain the conveyancer's business transactions; and

(b) correctly record and explain the conveyancer's receipts and payments of trust money; and

(c) enable the conveyancer's trust accounts and accounting records to be properly audited.

(2)  A conveyancer must keep the documents referred to in this section for a period of 6 years after the date of the last relevant transaction.

Penalty:  Fine not exceeding 20 penalty units.

20.   Financial documents

(1)  The Director, by notice in writing, may require the manager of an authorised deposit-taking institution to –

(a) provide written information as to –

(i) whether or not there is, or was, any trust account in the name of a specified person; and

(ii) the address at which any document relating to that trust account is kept; and

(b) produce for inspection to an authorised person any document relating to that trust account; and

(c) allow an authorised person to inspect, and take copies of, or extracts from, any such document.

(2)  A manager of an authorised deposit-taking institution must comply with a requirement under subsection (1) .

Penalty:  Fine not exceeding 20 penalty units.

(3)  A requirement under subsection (1)(b) is taken to have been contravened if the document is not produced at the address given by the authorised deposit-taking institution under subsection (1)(a)(ii) as the address at which the document is kept.

Division 2 - Receivers and managers

21.   Appointment of receiver or manager

(1)  The Director, in accordance with this section, may appoint a receiver or manager for a conveyancer's business if –

(a) the conveyancer has become bankrupt or insolvent or has taken the benefit, as a debtor, of a law relating to bankrupt or insolvent debtors; or

(b) there are grounds for the exercise of the Director's powers under section 38 ; or

(c) the conveyancer's licence has been cancelled or suspended under this Act; or

(d) the conveyancer has died or disappeared; or

(e) the Director is of the opinion that a fiduciary default has been, or may have been, committed in respect of the conveyancer's trust account; or

(f) the Director is of the opinion that the conveyancer has acted contrary to this Act or has otherwise acted unlawfully, improperly or negligently in the conduct of his or her business; or

(g) the conveyancer has requested it.

(2)  For the purposes of subsection (1) , the Director may appoint –

(a) a person who holds a licence under this Act, other than the conveyancer to whom subsection (1) relates; or

(b) a legal practitioner –

to manage the conveyancer's business for such period as the Director specifies or to carry on that business with a view to winding it up in the interests of the conveyancer's clients.

(3)  For the purposes of subsection (1) , the Director may appoint a suitable person to be a receiver of the trust money held by the conveyancer.

(4)  If a receiver is appointed, the Director may serve on an authorised deposit-taking institution in which the conveyancer maintains a trust account a notice that instructs the institution not to permit any withdrawal to be made from the trust account except by, or with the authority of, the receiver.

(5)  An authorised deposit-taking institution must comply with an instruction contained in a notice served on it under subsection (4) .

Penalty:  Fine not exceeding 50 penalty units.

22.   Term of appointment of receiver or manager

The appointment of a receiver or manager is to be on such terms and conditions as are specified by the Director in the instrument of appointment but may be terminated at any time by the Director.

23.   Remuneration of receivers and managers

A receiver or manager appointed under this Division is entitled to be paid by way of remuneration, and in repayment of any cost incurred by him or her, such amount as is approved by the Director.

24.   Duty of receiver

A receiver appointed in respect of trust money held by a conveyancer must –

(a) take control of any trust money in the conveyancer’s possession or under his or her control; and

(b) gather in any trust money not in the conveyancer’s possession or under his or her control; and

(c) distribute that money to any person entitled to it, as and when he or she becomes entitled to it, and in the meantime act as trustee of that money in the same capacity as that in which the conveyancer was acting, and subject to the same obligations; and

(d) report to the Director any insufficiency in respect of the trust money.

Penalty:  Fine not exceeding 20 penalty units.

25.   Receiver may require delivery of trust money and supply of information

(1)  A receiver appointed in respect of trust money held by a conveyancer may require the conveyancer or any other person –

(a) to deliver up to the receiver –

(i) all trust money; and

(ii) all accounts and documents relating to that money –

in his or her possession or under his or her control; and

(b) to give to the receiver any other information in his or her possession concerning that trust money.

(2)  A conveyancer or other person must comply with a requirement made by a receiver under subsection (1) .

Penalty:  Fine not exceeding 50 penalty units.

26.   Court may give directions, &c., to receiver or manager

The Court may, on the application of –

(a) a receiver appointed in respect of trust money held by a conveyancer; or

(b) a manager appointed to manage a conveyancer’s business –

authorise the receiver or manager to do such things as the Court thinks necessary for the administration of the trust money, the management of the conveyancer’s business or otherwise for the purposes of this Act, and may give any directions considered necessary or desirable for that purpose.

27.   Powers of manager

(1)  A manager appointed to manage a conveyancer’s business may do all acts and things in respect of that business that the conveyancer might lawfully have done.

(2)  Without limiting the generality of subsection (1) , a manager may, in his or her own name or in the name of the conveyancer –

(a) charge fees and recover disbursements for work undertaken for clients of the conveyancer in the course of the conveyancer’s business; and

(b) pay from the assets of the business any outgoings payable in connection with the business; and

(c) administer the trust account of the conveyancer and pay money from that account as and when a person becomes entitled to it.

28.   Obligations of manager

A manager appointed to manage a conveyancer’s business must, in the course of managing the business, perform all functions and carry out all duties that the conveyancer would have been required to perform or carry out by this Act or any other law, or by any agreement.

29.   Receiver and manager to report to Director

A receiver or manager appointed under this Division must report to the Director when required to do so by the Director and the report is to contain such information relating to the business of the relevant conveyancer as the Director requires.

Penalty:  Fine not exceeding 20 penalty units.

Division 3 - Audit of trust accounts

30.   Audit of trust accounts

(1)  A conveyancer who is required to maintain a trust account must arrange for the trust account to be audited in accordance with this section within 2 months after 30 June in each year.

Penalty:  Fine not exceeding 100 penalty units.

(2)  An audit is to be carried out –

(a) by a person who is a member of –

(i) the Institute of Chartered Accountants; or

(ii) the Australian Society of Certified Practising Accountants; or

(iii) [Section 30 Subsection (2) amended by No. 20 of 2013, s. 26, Applied:20 Jun 2013] the Institute of Public Accountants; and

(b) in accordance with any requirements that the Director determines relating to the matters to be examined.

(3)  The auditor is to provide the conveyancer with a certified report of the audit, stating whether the conveyancer has, in the opinion of the auditor, kept –

(a) proper accounting documents in respect of the trust account as required under section 19 ; and

(b) such statements as are adequate to explain the financial transactions of the trust account both during and at the end of the preceding financial year.

(4)  If the Director considers it appropriate to do so, the Director may, by notice in writing given to a conveyancer, receiver or manager, require the conveyancer, receiver or manager to arrange for any trust account maintained by the conveyancer to be audited within such period as the Director specifies and at the expense of the conveyancer.

(5)  An audit required by the Director under this section is to provide such information as the Director considers appropriate for the purposes of this Act.

(6)  A conveyancer, receiver or manager must comply with a requirement under this section.

Penalty:  Fine not exceeding 100 penalty units.

Division 4 - Duties of receivers, managers and auditors

31.   Confidentiality

(1)  A receiver, manager or auditor appointed in respect of a conveyancer's business must not divulge information that has come to his or her knowledge in the course of performing functions under this Act except –

(a) to the conveyancer; or

(b) to the Director; or

(c) as otherwise required by law.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A person engaged in the administration of this Act must not divulge information disclosed in a report provided under this Part except –

(a) for the purpose of consideration of the report by the Director; or

(b) as is otherwise necessary for the proper administration of this Act; or

(c) as is otherwise permitted or required by law.

Penalty:  Fine not exceeding 20 penalty units.

32.   Failing to comply with requirement of receiver, &c.

A person must not –

(a) refuse or fail to comply with a requirement of a receiver, manager or auditor under this Part; or

(b) hinder, delay or obstruct a receiver, manager or auditor in the performance of functions under this Part by altering or destroying relevant documents or by any other means.

Penalty:  Fine not exceeding 50 penalty units.

33.   Obtaining information for purposes of audit

(1)  An auditor employed by a conveyancer under section 30 may require the conveyancer or any other person who is able to do so –

(a) to produce all the accounts (whether or not trust accounts) relating to the business of the conveyancer and all documents relating to those accounts; and

(b) to provide any relevant information relating to the operation of the accounts.

(2)  The manager or other principal officer of an authorised deposit-taking institution in which a conveyancer has deposited money, whether in his or her own account or in a general or separate trust account, must, on being required to do so by an auditor under subsection (1) , disclose every such account, and provide any documents relating to that account, as required by the auditor.

Penalty:  Fine not exceeding 50 penalty units.

(3)  A person who is required by this section to produce documents to an auditor must permit the auditor to make a copy of the whole, or any part, of those documents.

Penalty:  Fine not exceeding 20 penalty units.

(4)  In this section –

conveyancer includes a former conveyancer;

document includes, but is not limited to, a document required to be kept under section 19 in respect of the receipt and disposition of trust money.

Division 5 - Annual returns

34.   Annual returns

(1)  A conveyancer must, before 30 September in each year, provide the Director with a return for the period ending on 30 June in that year.

(2)  The return is to contain any information that the Director requires and, in particular –

(a) the name and location of any trust account in which trust money has been deposited; and

(b) the total amount of all contributions to the trust account; and

(c) a statement of the balance of the trust account; and

(d) a copy of the relevant report prepared under section 30(3) .

(3)  The Director may, in writing, require a conveyancer to provide further and better particulars of any information referred to in subsection (2) and the conveyancer must, within a reasonable period specified by the Director, comply with the requirement.

Penalty:  Fine not exceeding 20 penalty units.

(4)  If a conveyancer fails to comply with this section, his or her licence is taken to be suspended until he or she provides a return in accordance with this section.

PART 4 - Disciplinary Provisions

35.   Power of Director in relation to complaints

[Section 35 Substituted by No. 29 of 2022, s. 21, Applied:01 Jul 2023]

(1)  A person may make to the Director a complaint, in a form approved by the Director, about the conduct of a conveyancer or a former conveyancer.

(2)  On receipt of a complaint under subsection (1) , the Director must consider whether there are grounds for disciplinary action against the conveyancer, or former conveyancer, and, for that purpose, may conduct an investigation as the Director thinks fit.

(3)  If the Director considers that the public interest so requires, the Director may suspend a conveyancer's licence during an investigation in relation to the conveyancer.

(4)  A person may make a complaint under this section even though –

(a) the person has suffered no economic loss, or no legal right of the person has been affected by the conduct complained about; or

(b) the licence of the conveyancer was suspended or had been cancelled at the time of the conduct complained about; or

(c) the conveyancer has ceased to carry on business as a conveyancer since the time of the conduct complained about.

(5)  In this Part, a reference to a conveyancer includes a reference to a conveyancer –

(a) who has ceased to carry on business as a conveyancer; or

(b) who holds, or who held, a licence by virtue of holding deemed registration

36.   

37.   Grounds for disciplinary action

There are grounds for disciplinary action against a conveyancer if –

(a) he or she has acted contrary to any provision of this Act; or

(b) he or she has contravened a condition of his or her licence; or

(c) his or her licence was obtained through fraud or by mistake; or

(d) he or she has contravened any rules of conduct prescribed in the regulations; or

(e) he or she has acted unlawfully, improperly, negligently or unfairly in the course of carrying on, or being employed or otherwise engaged in, the business of a conveyancer; or

(f) he or she has been found guilty of a prescribed offence; or

(g) he or she is ineligible to hold a licence as mentioned in section 5 ; or

(h) [Section 37 Amended by No. 41 of 2010, s. 11, Applied:01 Jan 2011] he or she has acted contrary to the Australian Consumer Law (Tasmania) Act 2010 .

38.   Suspension or cancellation of licence on illness or infirmity

[Section 38 Amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] Where the Director is satisfied, on receiving reports from 2 medical practitioners, that, owing to physical or mental illness or infirmity, it is in the public interest that a conveyancer should cease to act as such, the Director may –

(a) cancel the conveyancer's licence; or

(b) suspend the conveyancer's licence for a specified period or until any conditions imposed by the Director are met.

39.   Disciplinary action

(1)  Where the Director determines that there are grounds for taking disciplinary action against a conveyancer, the Director may, by order, do one or more of the following:

(a) cancel the conveyancer’s licence;

(b) suspend the conveyancer's licence for a specified period or until any conditions imposed by the Director are met;

(c) reprimand the conveyancer;

(ca) [Section 39 Subsection (1) amended by No. 29 of 2022, s. 22, Applied:01 Jul 2023] in the case of a person who has ceased to carry on business as a conveyancer, permanently prohibit the person from holding a licence or disqualify the person from holding a licence for a specified period;

(d) require the conveyancer to pay the reasonable costs of any hearing conducted by the Director or any investigation conducted for the purposes of the hearing, or both.

(2)  An order may provide that it is to have effect at a specified time and impose conditions as to the conduct of the conveyancer who is subject to the order, or his or her business, until that time.

(3)  An order takes effect on the day on which it is served on the conveyancer to whom it relates.

(4)  If an amount ordered to be paid by a conveyancer as costs under subsection (1)(d) is not paid as directed by the order, that amount may be recovered by the Director as a debt due to the Crown in any court of competent jurisdiction.

40.   Ancillary powers of Director

For the purpose of exercising his or her powers under this Part, the Director has the same powers as the Court to administer an oath and compel the attendance of witnesses and production of documents.

41.   Contravention of order

If a person carries on business as a conveyancer in contravention of an order of the Director made under section 39 , he or she is guilty of an offence.

Penalty:  Fine not exceeding 200 penalty units or imprisonment for a term not exceeding 6 months.

42.   Reviews by Magistrates Court (Administrative Appeals Division)

(1)  A person who is aggrieved by –

(a) a decision of the Director refusing to grant a licence to the person; or

(b) a decision of the Director to impose a condition on a licence or vary a condition on a licence of the person; or

(c) a decision of the Director suspending or cancelling a licence of the person; or

(d) a decision of the Director to appoint a receiver or manager in respect of the person's business; or

(e) an order made by the Director under section 39  –

may apply to the Court for a review of the decision or order.

(2)  The application is to be made in accordance with the Magistrates Court (Administrative Appeals Division) Act 2001 .

(3)  The review is to be heard and determined under the Magistrates Court (Administrative Appeals Division) Act 2001 .

PART 5 - Miscellaneous and Supplemental

43.   Delegations

The Director may delegate any of the Director's functions or powers under this Act other than this power of delegation.

44.   Register of conveyancers

(1)  [Section 44 Subsection (1) substituted by No. 29 of 2022, s. 23, Applied:01 Jul 2023] The Director must keep a register of each person carrying on business as a conveyancer –

(a) by virtue of the person holding a licence that is issued and in force in accordance with Division 1 of Part 2 ; or

(b) who has notified the Director of the person’s entitlement to hold deemed registration in accordance with section 4A .

(2)  The register is to contain details of the following:

(a) the date on which a licence was granted;

(b) the name and business address of the licensed conveyancer;

(ba) [Section 44 Subsection (2) amended by No. 29 of 2022, s. 23, Applied:01 Jul 2023] in the case of a licence held by a person by virtue of holding deemed registration, any details that the Director considers necessary in relation to the licence;

(c) any cancellation or suspension of a licence;

(d) any surrender of a licence;

(e) any orders made under section 39 in respect of a licence;

(f) any other matter that the Director considers appropriate.

(3)  Any person may inspect the register during normal business hours and on payment of the prescribed fee.

(4)  The Director may publish a list of all current licences in any manner or form that the Director determines.

45.   False or misleading information

A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided, or document kept, under this Act.

Penalty:  Fine not exceeding 50 penalty units.

46.   Continuing offence

A person convicted of an offence against a provision of this Act in respect of a continuing act or omission –

(a) is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continues of not more than one-tenth of the maximum penalty prescribed for that offence; and

(b) is, if the act or omission continues after the conviction, guilty of a further offence against the provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continues after the conviction of not more than one-tenth of the maximum penalty prescribed for the offence.

46A.   Offences by bodies corporate

[Section 46A Inserted by No. 29 of 2012, s. 5, Applied:01 May 2015] If a body corporate commits an offence against this Act, each person concerned in the management of the body corporate is taken to have also committed the offence and may be convicted of the offence unless the person establishes that –

(a) the act or omission constituting the offence took place without the person's knowledge or consent; or

(b) the person used all due diligence to prevent that act or omission by the body corporate.

47.   Evidentiary provisions

(1)  In any proceedings, a document purporting to be a licence is admissible as evidence of that fact.

(2)  A certificate purporting to be signed by the Director stating that a person named in the certificate was or was not, at any date specified in the certificate, the holder of a licence is admissible as evidence of that fact.

(3)  A certified copy of any entry in the register kept under section 44 signed by the Director is admissible as evidence of the facts stated in that copy.

48.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Without limiting the generality of subsection (1) , the regulations may –

(a) provide for the fee to be paid to the Director for the grant of a licence; and

(b) establish rules of conduct to be observed by conveyancers; and

(c) be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstances or otherwise, specified in the regulations; and

(d) apply generally or be limited in their application by reference to specified exemptions or specified factors; and

(e) authorise any matter to be from time to time determined, applied or regulated by the Director; and

(f) provide for penalties not exceeding a fine of 100 penalty units for offences against the regulations.

48A.   Certain trust accounts taken to have been maintained

[Section 48A Inserted by No. 25 of 2012, s. 5, Applied:12 Jul 2012] A conveyancer who maintained, during a period before the commencement of the Conveyancing Amendment Act 2012 , a trust account with an authorised deposit-taking institution that would have been an approved institution if that Act and the Property Agents and Land Transactions Amendment Act 2012 had been in force during the period, is to be taken to have maintained the account with an approved institution during the period.

49.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Justice and Industrial Relations; and

(b) the department responsible to that Minister in relation to the administration of this Act is the Department of Justice.

PART 6 - Auctioneers and Real Estate Agents Act 1991 Amended

50.   Principal Act

In this Part, the Auctioneers and Real Estate Agents Act 1991 is referred to as the Principal Act.

PART 7 - Legal Profession Act 1993 Amended

56.   Principal Act

In this Part, the Legal Profession Act 1993 is referred to as the Principal Act.