Version No. 011
Estate Agents (General, Accounts and Audit) Regulations 1997
S.R. No. 41/1997
Version incorporating amendments as at 20 September 2005
table of provisions
Regulation Page
iii
Regulation Page
Part 1—Introductory 1
1. Objective 1
2. Authorising provision 1
3. Commencement 1
4. Revocation 1
5. Definitions 1
Part 2—General 3
6. Matters Authority to consider before granting a licence to a corporation 3
7. Matters Authority to consider before granting a licence to an individual 3
8. Signing of the licence 4
9–12. Revoked 4
13. Notification of bankruptcy etc. 4
14. Display of names 7
15. Revoked 8
16. Permission for executor etc to carry on business 8
17. Section 49A records to be retained 8
18. Statement under section 51(1A) 9
19. Statement to be given on the sale of a small business 9
20, 21. Revoked 10
Part 3—Accounts and Audit 11
22. Register of trust receipt forms 11
23. Trust receipts 11
24. Trust account deposit forms and duplicates 12
25. Trust account journals 12
26. Trust transfers 13
27. Trust account ledger 13
28. Register of trust cheque forms 14
29. Record of trust money payments 14
30. Trust account cheques 15
31. Register of securities 15
32. Records to be retained 17
33. Approval under section 63(3) of the Act 17
34. Approval under section 63(3B) of the Act 18
35. Trust account reconciliation statements 19
36. Verification of trust account reconciliation statements 20
37. Trust account reconciliation statements to be produced 20
38. Production of a statement required by section64(10) of the Act 20
39. Estate agent's use of trust money 21
40. Trust account receipt forms—cessation of business or death of estate agent 22
41. Estate agent must appoint auditor 23
42. Revoked 23
43. Approval of firm as auditor under section 66 of the Act 23
44. Revocation of approval or determination of ineligibility of auditor 23
45, 46. Revoked 24
47. Estate agent's notification of trust account deficiency 25
48. Auditor's notification of trust account deficiency 25
49. Revoked 26
50. Report of auditor under section 64 26
Part 3A—Monitoring of Estate Agency Business 28
51. Embargo notice 28
Part 4—Guarantee Fund 29
52. Claims against the Fund 29
53. Disallowance of a claim against the Fund 29
______
SCHEDULE 30
Form 1—Statement Concerning Promise of Finance by Auctioneer or Estate Agent to Purchaser or Person Acting on Behalf of Purchaser 30
Form 2—Statement by a Vendor of a Small Business 32
Form 3—Embargo Notice 43
Forms 4–9—Revoked 44
Form 10—Notice of Disallowance of Claim for Compensation from the Estate Agents' Guarantee Fund 45
═══════════════
EndNOTEs 46
1. General Information 46
2. Table of Amendments 47
3. Explanatory Details 48
iii
Version No. 011
Estate Agents (General, Accounts and Audit) Regulations 1997
S.R. No. 41/1997
Version incorporating amendments as at 20 September 2005
48
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 Act 1980.
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 Regulations¾
"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 who¾
(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)¾
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 who¾
(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)¾
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 ensure¾
(a) that there is displayed at all times a notice stating¾
(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 must¾
(a) display at all times at the principal office a notice stating¾
(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 2¾
(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 who¾
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 12months¾
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 records¾
(a) the numbers of that agent's forms; and