Version No. 010
Estate Agents (General, Accounts and Audit) Regulations 1997
S.R. No. 41/1997
Version incorporating amendments as at 19 February 2004
table of provisions
RegulationPage
1
RegulationPage
Part 1—Introductory
1.Objective
2.Authorising provision
3.Commencement
4.Revocation
5.Definitions
Part 2—General
6.Matters Authority to consider before granting a licence to a corporation
7.Matters Authority to consider before granting a licence to an individual
8.Signing of the licence
9–12.Revoked
13.Notification of bankruptcy etc.
14.Display of names
15.Revoked
16.Permission for executor etc to carry on business
17.Section 49A records to be retained
18.Statement under section 51(1A)
19.Statement to be given on the sale of a small business
20, 21.Revoked10
Part 3—Accounts and Audit
22.Register of trust receipt forms
23.Trust receipts
24.Trust account deposit forms and duplicates
25.Trust account journals
26.Trust transfers
27.Trust account ledger
28.Register of trust cheque forms
29.Record of trust money payments
30.Trust account cheques
31.Register of securities
32.Records to be retained
33.Approval under section 63(3A) of the Act
34.Approval under section 63(3B) of the Act
35.Trust account reconciliation statements
36.Verification of trust account reconciliation statements
37.Trust account reconciliation statements to be produced
38.Production of a statement required by section64(10) of the Act
39.Estate agent's use of trust money
40.Trust account receipt forms—cessation of business or death of estate agent
41.Estate agent must appoint auditor
42.Revoked
43.Approval of firm as auditor under section 66 of the Act
44.Revocation of approval or determination of ineligibility of auditor
45, 46.Revoked
47.Estate agent's notification of trust account deficiency
48.Auditor's notification of trust account deficiency
49.Revoked
50.Report of auditor under section 64
51.Revoked26
Part 4—Guarantee Fund
52.Claims against the Fund
53.Disallowance of a claim against the Fund
______
SCHEDULE
Form 1—Statement Concerning Promise of Finance by Auctioneer or Estate Agent to Purchaser or Person Acting on Behalf of Purchaser
Form 2—Statement by a Vendor of a Small Business
Forms 3–9—Revoked41
Form 10—Notice of Disallowance of Claim for Compensation from the Estate Agents' Guarantee Fund
═══════════════
EndNOTEs
1. General Information
2. Table of Amendments
3. Explanatory Details
INDEX47
1
Version No. 010
Estate Agents (General, Accounts and Audit) Regulations 1997
S.R. No. 41/1997
Version incorporating amendments as at 19 February 2004
1
Estate Agents (General, Accounts and Audit) Regulations 1997
S.R. No. 41/1997
Part 1—Introductory
1.Objective
The objective of these Regulations is to facilitate the operation of the Act by prescribing, among other things, procedures for the keeping of trust accounts and the auditing of trust accounts, and prescribing forms, including the statement to be given on the sale of a small business.
2.Authorising provision
These Regulations are made under section 99 of the Estate Agents Act1980.
3.Commencement
These Regulations come into operation on 1 July 1997.
4.Revocation
The Estate Agents (Licensing, General, Accounts and Audit) Regulations 1992[1] are revoked.
5.Definitions
(1)In these Regulations
"Act" means the Estate Agents Act 1980;
"trust money" means money received or held by an estate agent while acting as an estate agent (whether by the agent or by an employee or agent's representative) on behalf of any person or as a stakeholder or in trust pending the completion of any transaction;
"trust record" means the duplicate of every trust receipt, the register of trust receipt forms, the duplicates of every completed trust account deposit form, the trust account journals, the trust ledger, the register of trust cheque forms, the record of trust money payments, the register of securities, the trust account reconciliation statements and any other books, accounts and records kept by an estate agent relating to trust money;
"working director" means, in relation to a corporation that carries on business as an estate agent, a director of that corporation who is engaged in the estate agency business of that corporation.
(2)In these Regulations a reference to a form is a reference to a form in the Schedule.
r. 5
______
Part 2—General
6.Matters Authority to consider before granting a licence to a corporation
Reg. 6(1) amendedby S.R. No. 4/2004 reg.5.
r. 6
(1)When considering an application by a corporation, the Authority must take into account whether the proposed officer in effective control of the estate agency business of the corporation will comply with section 29B of the Act.
(2)When considering an application by a corporation which is not a declared corporation, the Authority must take into account whether the proposed officer in effective control of the corporation will be available to exercise continual supervision over the employees of the corporation.
(3)When considering an application by a corporation, the Authority must take into account whether any person who proposes to manage a specified branch office of the corporation will be in regular and substantial attendance at that office.
7.Matters Authority to consider before granting a licence to an individual
(1)When considering an application for a licence by an individual, the Authority must take into account whether the applicant will be available to exercise continual supervision over the employees in his or her estate agency business.
(2)When considering an application for a licence by an individual, the Authority must take into account whether the person or people who will manage his or her estate agency office or offices will be in regular and substantial attendance at the office or offices.
8.Signing of the licence
r. 8
An individual must sign an issued licence upon receipt with his or her usual signature in the space provided.
Penalty:5 penalty units.
Reg.9 revokedby S.R. No. 4/2004 reg.6(1).
*****
Reg. 10 amended by S.R. No. 62/2001 reg.4(Sch. item 8), revoked by S.R. No. 126/2003 reg.5.
*****
Regs11, 12 revokedby S.R. No. 4/2004 reg.6(1).
*****
13.Notification of bankruptcy etc.
(1)A licensed estate agent who
(a)becomes an insolvent under administration; or
(b)becomes an externally-administered corporation; or
Reg.13(1)(c) amendedby S.R. No. 4/2004 reg.7(2).
(c)becomes a represented person within the meaning of the Guardianship and Administration Act 1986; or
(d)is convicted of, or has found proven against him or her, any offence involving fraud, dishonesty, drug trafficking or violence which is punishable by imprisonment for 3months or more; or
(e)has, in relation to anything he or she has done or not done, a claim allowed against theEstate Agents' Guarantee Fund under PartVII of the Act or any corresponding fund established under any corresponding previous enactment; or
(f)is made the subject of an order by any regulatory body in or outside Victoria disqualifying him or her from acting as an estate agent or agent's representative (or an equivalent occupation under the jurisdiction of the regulatory body)
must notify the Authority in writing immediately.
Reg.13(1A) insertedby S.R. No. 4/2004 reg.7(1).
(1A)The officer in effective control of the estate agency business of a corporation must immediately notify the Authority in writing if the corporation—
(a)becomes insolvent or an externally administered body corporate; or
r. 13
(b)has a claim allowed against the Estate Agents' Guarantee Fund under Part VII of the Act; or
(c)is convicted of, or has found proven against it, an offence involving fraud, dishonesty, drug trafficking or violence that, if it was a natural person, would be punishable by imprisonment for 3months or more; or
(d)is made the subject of an order by any regulatory body in or outside Victoria disqualifying the corporation from acting as an estate agent (or an equivalent occupation under the jurisdiction of the regulatory body).
Reg.13(1B) insertedby S.R. No. 4/2004 reg.7(1).
(1B)The officer in effective control of the estate agency business of a corporation must immediately notify the Authority in writing upon becoming aware that a director of that corporation—
(a) has become an insolvent under administration; or
(b)has become a represented person within the meaning of the Guardianship and Administration Act 1986; or
(c)has been convicted of, or has found proven against him or her, any offence involving fraud, dishonesty, drug trafficking or violence which is punishable by imprisonment for 3months or more; or
r. 13
(d)has had a claim allowed against the Estate Agents' Guarantee Fund under Part VII of the Act; or
(e)has been made the subject of an order by any regulatory body in or outside Victoria disqualifying the person from acting as an estate agent (or an equivalent occupation under the jurisdiction of the regulatory body).
(2)An agent's representative who
(a)becomes an insolvent under administration; or
(b)is convicted of, or has found proven against him or her, any offence involving fraud, dishonesty, drug trafficking or violence which is punishable by imprisonment for 3months or more; or
(c)has, in relation to anything he or she has done or not done, a claim allowed against theEstate Agents' Guarantee Fund under Part VII of the Act or any corresponding fund established under any corresponding previous enactment; or
(d)is made the subject of an order by any regulatory body in or outside Victoria disqualifying him or her from acting as an agent's representative (or an equivalent occupation under the jurisdiction of the regulatory body)
must notify the Authority in writing immediately.
(3)An agent's representative who becomes an insolvent under administration must notify his or her estate agent-employer in writing immediately.
Penalty:5 penalty units.
14.Display of names
r. 14
(1)At all times while a branch office of a licensed estate agent is open for business, the licensed agent must ensure
(a)that there is displayed at all times a notice stating
(i)the name of the person who is managing the day to day operation of that office; and
(ii)whether that person is a branch manager or the holder of a rural branch manager's licence; and
(b)that the notice can be easily read from outside the office.
(2)A licensed estate agent which is a corporation must
(a)display at all times at the principal office a notice stating
(i)the name of the officer in effective control of its estate agency business; and
(ii)the fact that that person is the officer in effective control; and
(b)ensure that the notice can be easily read from outside the office.
Penalty:5 penalty units.
Reg.15 revokedby S.R. No. 4/2004 reg.6(1).
*****
16.Permission for executor etc to carry on business
r. 16
A person to whom permission has been granted by the Authority under section 31E(3) of the Act must on ceasing to carry on the business, or if the period of approval (if any) expires, notify the Authority in writing reporting on the status of the business within 14 days of the cessation or expiry occurring.
Penalty:5 penalty units.
17.Section 49A records to be retained[2]
An estate agent must retain any document required by section 49A of the Act for 7 years.
Penalty:5 penalty units.
18.Statement under section 51(1A)
An estate agent or auctioneer who gives a statement under section 51(1A) of the Act must do so in the form of Form 1.
Penalty:5 penalty units.
19.Statement to be given on the sale of a small business
(1)The statement regarding the sale of a small business required by section 52(1) of the Act must be in the form of Form 2.
(2)The Trading Statement in Form 2
(a)must show the required information for the last 3 accounting periods that cover a total period of at least 24 months of trading, unless the vendor has not owned the business for that long;
(b)must show the required information in column C up to a date that is less than 4months before the date of the sale of the business;
r. 18
(c)must be certified in the terms set out on the last page of the statement by a practising accountant who
Reg. 19(2)(c)(i) amended by S.R. No. 126/2003 reg.6(1).
(i)is registered as an auditor by the Australian Securities and Investments Commission; or
Reg. 19(2)(c)(ii) amended by S.R. No. 126/2003 reg.6(2).
(ii)is a Member of CPA Australia or the Institute of Chartered Accountants in Australia; or
(iii)has attained the status of Member or Fellow of either the National Institute of Accountants or the Association of Taxation and Management Accountants; or
(iv)has attained the status of Fellow of the National Tax & Accountants' Association Limited.
(3)Subject to sub-regulation (4), an accounting period referred to in sub-regulation (2) (a) must be—
(a)a financial year; or
(b)a continuous period of 12 months.
(4)If—
(a)a particular accounting period was changed for book-keeping purposes; or
(b)as a result of a change of ownership of the business, the first accounting period is less than 12 months; or
(c)the period from the end of the last full accounting period to the date required by sub-regulation (2)(b) is less than 12months
r. 19
that period may be treated as an accounting period for the purposes of sub-regulation 2(a).
Reg.20 revokedby S.R. No. 126/2003 reg.7(1).
*****
Reg.21 revokedby S.R. No. 126/2003 reg.8(1).
*****
______
Part 3—Accounts and Audit
22.Register of trust receipt forms
r. 22
(1)An estate agent must keep a register of trust receipt forms which records
(a)the numbers of that agent's forms; and
(b)the date a batch of forms is received from the printer; and
(c)the name of any employee or agent's representative to whom a form is given; and
(d)the date the form is handed to an employee or agent's representative; and
(e)the date of return of the forms.
Penalty:5 penalty units.
(2)For the purposes of sub-regulation (1), it is sufficient to record the first and last number of trust account receipt forms where they are part of a sequence of numbers.
23.Trust receipts
(1)An estate agent must ensure that the estate agent's trust receipts have printed on them
(a)the name under which the licensed estate agent conducts business; and
(b)the address of the estate agency office at which the estate agent keeps the trust receipt book from which the trust receipt is taken.
(2)A person completing a trust receipt must specify
(a)the date on which the trust money is received;
(b)the name of the person for, or on behalf of whom, the money is received;
(c)a description of the transaction to which the money relates;
(d)the amount and form of the money received; and
(e)the name of the person paying the money.
(3)The person issuing a trust receipt must sign it.
Penalty:5 penalty units.
24.Trust account deposit forms and duplicates
r. 24
(1)An estate agent must, for each deposit of trust money into an authorised financial institution, make and retain a copy of each completed trust account deposit form.
(2)A trust account deposit form must show
(a)the date of payment; and
(b)the name and number of the agent's trust account; and
(c)if the money paid is a cheque
(i)the name of the drawer of the cheque; and
(ii)the name and branch of the financial institution against which the cheque was drawn.
Penalty:5 penalty units.
25.Trust account journals
An estate agent must keep journals, and record in the appropriate journal all dealings with trust money, and enter sufficient particulars of all receipts, payments and transfers to enable adequate details of the transactions to be posted into the trust account ledger.
Penalty:5 penalty units.
26.Trust transfers
r. 26
In transferring trust money from one account to another, an estate agent must record
(a)the date of the transfer;
(b)the account of the trust ledger from which the money is transferred;
(c)the account of the trust ledger to which the money is transferred;
(d)a notation or code indicating the purpose for which the money is transferred; and
(e)the amount of the money transferred.
Penalty:5 penalty units.
27.Trust account ledger
(1)An estate agent must keep a ledger consisting of a separate identifiable account for
(a)each person on behalf of whom the estate agent holds trust money; and
(b)each transaction pending the completion of which the estate agent holds trust money as a stakeholder or in trust.
(2)The estate agent must ensure that each account of the trust ledger contains
(a)the name and address of the agent's principal;
(b)the name of other parties to the transaction (if any);
(c)the date of each transaction;
(d)the name of the person from whom the money was received, or to whom it was paid;
(e)the purpose of the receipt or payment;
(f)the amount paid or received;
(g)the cheque number, receipt number or transfer journal folio number; and
(h)the balance after each entry.
(3)The estate agent must ensure that an account at all times shows a continuous running balance disclosing the amount of money held.
Penalty:5 penalty units.
28.Register of trust cheque forms
r. 28
(1)An estate agent must keep a register of trust cheque forms.
Penalty:5 penalty units.
(2)An estate agent must ensure that there is recorded in the register
(a)the serial numbers; and
(b)details of the issue and use of trust cheque forms given to, or held by, the agent.
Penalty:5 penalty units.
(3)For the purposes of sub-regulation (2) it is sufficient to record the first and last number of trust cheque forms where they are part of a sequence of numbers.
29.Record of trust money payments
If any payment of trust money is made, an estate agent must keep a cheque butt or other record which contains
(a)the date of the payment;
(b)the name of the person to whom the payment is made;
(c)if the payment is made for the purpose of purchasing a bank cheque, the name of the person to whom the bank cheque will be payable (if known);
(d)the account in the trust ledger to which the payment is to be debited;
(e)a notation or code indicating brief particulars of the nature of the transaction, and the purpose for which the payment is made;
(f)if the payment is made by cheque, its serial number; and
(g)the amount of the payment.
Penalty:5 penalty units.
30.Trust account cheques
r. 30
A person who writes a trust account cheque must mark it "not negotiable" and must not make it payable to cash.
Penalty:5 penalty units.
31.Register of securities
(1)An estate agent must keep a register of
(a)all securities for money the title to which is transferable by delivery, held by the estate agent on behalf of another person;
(b)all securities and documents of title held by the agent on behalf of another person
(i)in the agent's own name; or
(ii)in joint names with another agent or agents; or
(iii)under the agent's control; or
(iv)under joint control with another agent or agents;
(c)all receipts for the deposit of money with any person made by the agent on behalf of another person
(i)in the agent's own name; or
(ii)in joint names with another agent or agents; or
(iii)under the agent's control; or
(iv)under joint control with another agent or agents.
r. 31
(2)The register must show
(a)the date the security, document of title or receipt was received;
(b)a description of the security, document of title, or receipt;
(c)the value or amount of the security or money deposited;
(d)the name of the person for whom the security, document of title or receipt is held;
(e)the date of delivery of the security, document of title, or receipt by the agent to another person, and the name of the person to whom it is given;