Estate Agents (General, Accounts and Audit)
Regulations 1997
S.R. No. 41/1997
TABLE OF PROVISIONS
Regulation
Page
PART 1INTRODUCTORY
1.
2.
3.
4.
5.
1
Objective
Authorising provision
Commencement
Revocation
Definitions
1
1
1
1
2
PART 2GENERAL
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
3
Matters Authority to consider before granting a licence to a
corporation
Matters Authority to consider before granting a licence to an
individual
Signing of the licence
Corporationsofficer in effective control
Changes to particulars of a corporation
Corporations and individuals—management of an estate agency
business
Individuals—supervision of employees
Notification of bankruptcy etc.
Display of names
Agent's representative's authority
Permission for executor etc to carry on business
Section 49A records to be retained
Statement under section 51(1A)
Statement to be given on the sale of a small business
Notice of franchising agreement
Proof by official certificate
PART 3ACCOUNTS AND AUDIT
22.
23.
24.
Register of trust receipt forms
Trust receipts
Trust account deposit forms and duplicates
i
3
3
4
4
4
5
5
6
7
8
8
9
9
9
10
11
12
12
12
13
Regulation
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
Page
Trust account journals
Trust transfers
Trust account ledger
Register of trust cheque forms
Record of trust money payments
Trust account cheques
Register of securities
Records to be retained
Approval under section 63(3A) of the Act
Approval under section 63(3B) of the Act
Trust account reconciliation statements
Verification of trust account reconciliation statements
Trust account reconciliation statements to be produced
Production of a statement required by section 64(10) of the Act
Estate agent's use of trust money
Trust account receipt forms—cessation of business or death of
estate agent
Estate agent to appoint an auditor
Change of auditor
Approval of firm as auditor under section 66 of the Act
Revocation of approval or determination of ineligibility of
auditor
Resignation of an auditor
Auditing of trust accounts
Estate agent's notification of trust account deficiency
Auditor's notification of trust account deficiency
Auditor's recommendations
Report of auditor under section 64 of the Act
Statutory declaration under section 69(1) of the Act
PART 4GUARANTEE FUND
52.
53.
13
15
15
16
16
17
17
18
19
20
21
22
22
22
22
23
24
24
26
26
27
27
28
28
29
29
30
31
Claims against the Fund
Disallowance of a claim against the Fund
31
31
—————————
SCHEDULE
32
FORM 1—Statement concerning promise of finance by auctioneer or
estate agent to purchaser or person acting on behalf of
purchaser
32
FORM 2—Statement by a vendor of a small business
34
FORM 3—Notice of franchising agreement
45
ii
Regulation
Page
FORM 4—Certificate by Director
46
FORM 5—Notice of appointment of auditor
47
FORM 6—Notice of change of auditor
48
FORM 7—Auditor's report for the period to
49
FORM 8—Statutory declaration by a licensed estate agent who neither
received nor held trust money during the relevant year
51
FORM 9—Claim for compensation from estate agents' guarantee fund
52
FORM 10—Notice of disallowance of claim for compensation from the
estate agents' guarantee fund
53
═══════════════
NOTES
54
iii
STATUTORY RULES 1997
S.R. No. 41/1997
Estate Agents Act 1980
Estate Agents (General, Accounts and Audit)
Regulations 1997
The Governor in Council makes the following Regulations:
Dated: 20 May 1997
Responsible Minister:
JAN WADE
Minister for Fair Trading
SHARNE BRYAN
Clerk of the Executive Council
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
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S.R. No. 41/1997
The Estate Agents (Licensing, General, Accounts
and Audit) Regulations 19921 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.
_______________
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PART 2GENERAL
6. Matters Authority to consider before granting a
licence to a corporation
(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 30AA 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.
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8. Signing of the licence
An individual must sign an issued licence upon
receipt with his or her usual signature in the space
provided.
Penalty: 5 penalty units.
9. Corporationsofficer in effective control
(1) A corporation must have an officer in effective
control of its estate agency business.
(2) The officer in effective control of the estate
agency business of a corporation must be a
licensed estate agent.
(3) A corporation must not change the officer in
effective control without the consent of the
Authority.
Penalty: 5 penalty units.
10. Changes to particulars of a corporation
(1) A licensed estate agent which is a corporation
must, within 14 days, notify the Authority in
writing of any of the following events, and give
full particulars of what has occurred
(a) a working director of the corporation ceasing
to be a working director of the corporation;
(b) a person becoming a working director of the
corporation;
(c) a change of the officer in effective control of
the estate agency business of the corporation;
(d) a change in the beneficial ownership of any
of the shares issued in the corporation;
(e) a change in the beneficial ownership of any
of the units issued in any trust of which the
corporation is a trustee;
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S.R. No. 41/1997
(f) the issue or allotment of a share or shares in
the capital of the corporation, or the granting
of an option, or creation of an entitlement to
subscribe to or take up an allotment of a
share or shares in the capital of the
corporation;
(g) a change or assignment of the voting rights
of the issued shares;
(h) a change in the effective management or
control of the corporation;
(i) a change of name of the corporation.
Penalty: 5 penalty units.
(2) Paragraphs (a), (b) and (h) of sub-regulation (1)
do not apply to a declared corporation.
(3) Paragraphs (d), (e), (f), (g) and (h) of subregulation (1) do not apply to a corporation that is
a listed corporation within the meaning of the
Corporations Law.
11. Corporations and individuals—management of an
estate agency business
(1) An estate agent must not operate, or allow the
operation, of an estate agency office unless there
is a person who manages the day to day operation
of the office.
(2) Any person who is not referred to in section 30AA
of the Act and who manages the day to day
operation of an estate agency office must be in
regular and substantial attendance at that office.
Penalty: 5 penalty units.
12. Individuals—supervision of employees
A licensed estate agent (not being a corporation)
who carries on business as an estate agent must
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continually supervise the employees of that
business.
Penalty: 5 penalty units.
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
(c) becomes a represented person within the
meaning of the Guardianship and
Administration Board 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 3
months or more; or
(e) has, in relation to anything he or she has
done or not done, a claim allowed against the
Estate Agents' Guarantee Fund under Part
VII 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.
(2) An agent's representative who
(a) becomes an insolvent under administration;
or
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S.R. No. 41/1997
(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 3
months or more; or
(c) has, in relation to anything he or she has
done or not done, a claim allowed against the
Estate 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
(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
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(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.
15. Agent's representative's authority
(1) An estate agent who authorises an agent's
representative under section 47(1) of the Act to
perform any of the functions of the estate agent
must sign the authority and give it to the agent's
representative before he or she commences any of
the functions authorised in the authority.
(2) The agent's representative must immediately
return the authority to the estate agent who signed
the authority, if the authority of the agent's
representative ceases for any reason.
Penalty: 5 penalty units.
16. Permission for executor etc to carry on business
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
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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 retained2
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 4
months before the date of the sale of the
business;
(c) must be certified in the terms set out on the
last page of the statement by a practising
accountant who
(i) is registered as an auditor by the
Australian Securities Commission; or
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(ii) is a Member of the Australian Society
of Certified Practising Accountants 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 12
months
that period may be treated as an accounting period
for the purposes of sub-regulation 2(a).
20. Notice of franchising agreement
(1) The notice referred to in section 43(2)(a) of the
Act must be in the form of Form 3.
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(2) If a notice of franchising agreement is given it
must be accompanied by a copy of the agreement
and any ancillary agreement.
21. Proof by official certificate
The certificate referred to in section 92 of the Act
must be in the form of Form 4.
_______________
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PART 3ACCOUNTS AND AUDIT
22. Register of trust receipt forms
(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;
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S.R. No. 41/1997
(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
(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
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adequate details of the transactions to be posted
into the trust account ledger.
Penalty: 5 penalty units.
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26. Trust transfers
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;
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(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
(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
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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
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;
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(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.
(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;
(f) the reason why the security, document of
title, or receipt is being held.
Penalty: 5 penalty units.
32. Records to be retained 3
An estate agent must retain for 7 years
(a) every trust record and statement which the
agent is required by these Regulations to
keep;
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(b) any files where the agent has received or is
entitled to receive any commission, or where
trust money has been received.
Penalty: 5 penalty units.
33. Approval under section 63(3A) of the Act
(1) An estate agent who proposes to use a method for
the receipt of trust money which does not involve
the agent keeping a duplicate copy of the receipt,
must apply in writing to the Authority for
approval.
(2) The Authority must notify in writing an estate
agent who has applied for approval whether or not
the application is approved, and whether or not
the approval (if any) is given with or without
variation.
(3) An approval applies only to the estate agent who
applied for and received the approval.
(4) If the Authority becomes dissatisfied with a
method it has approved, it may give to the estate
agent a written notice
(a) stating that the approval is revoked; or
(b) requiring the estate agent to make specified
variations to the approved method within one
month of the notice being given.
(5) If a notice is given under sub-regulation 4(a), the
approval ceases one month after the notice is
given.
(6) If a notice is given under sub-regulation 4(b) and
the variations are not made, then the approval
ceases one month after the notice is given.
(7) The Authority may at any time require an estate
agent to obtain and give to the Authority a report
from the agent's auditor about whether the form of
record being used complies with the record
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approved by the Authority and the agent must
provide a report if required to do so.
Penalty applying to this sub-regulation: 5 penalty
units.
34. Approval under section 63(3B) of the Act
(1) An estate agent who proposes to use receipts and
duplicates that are not sequentially numbered
must apply in writing to the Authority for
approval.
(2) The Authority must notify in writing an estate
agent who has applied for approval whether or not
the application is approved, and whether or not
the approval (if any) is given with or without
variation.
(3) An approval applies only to the estate agent who
applied for and received the approval.
(4) If the Authority becomes dissatisfied with a
method it has approved, it may give to the estate
agent a written notice
(a) stating that the approval is revoked; or
(b) requiring the estate agent to make specified
variations to the approved method within one
month of the notice being given.
(5) If a notice is given under sub-regulation 4(a), the
approval ceases one month after the notice is
given.
(6) If a notice is given under sub-regulation 4(b) and
the variations are not made, then the approval
ceases one month after the notice is given.
(7) The Authority may at any time require an estate
agent to obtain and give to the Authority a report
from the agent's auditor about whether the method
of numbering receipts being used complies with
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the method approved by the Authority and the
agent must provide a report if required to do so.
Penalty applying to this sub-regulation: 5 penalty
units.
35. Trust account reconciliation statements
(1) An estate agent must complete and keep a trust
account reconciliation statement at the end of each
month which
(a) ascertains the balance of the trust cash
journal;
(b) reconciles the balance of the agent's trust
account with an authorised financial
institution with the balance of the agent's
trust cash journal; and
(c) reconciles the balances of the accounts of the
agent's trust ledger with the balance of the
agent's trust account with an authorised
financial institution.
Penalty: 5 penalty units.
(2) It is not necessary for compliance with subregulation (1)(c) to set out the names of the people
on whose behalf the amounts of the following
balances are held, if
(a) the list of account balances in the statement
is comprised of the separate amounts in each
account; and
(b) there is a notation or code identifying each
account; and
(c) the list of account balances is in the same
sequence as they appear in the trust ledger,
and there is a total of such balances.
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36. Verification of trust account reconciliation statements
An estate agent, or if the estate agent is a
corporation, a working director or the officer in
effective control, must verify that the trust account
reconciliation statement is accurate and sign it to
that effect within 14 days after the end of the
preceding month.
Penalty: 5 penalty units.
37. Trust account reconciliation statements to be
produced
An estate agent must produce all trust account
reconciliation statements to the auditor for any
audit or report under sections 64, 64A and 64B of
the Act.
Penalty: 5 penalty units.
38. Production of a statement required by section 64(10)
of the Act
An estate agent must produce to the auditor the
statement required by section 64(10) of the Act
within one month after the last day of the period
to which the audit relates.
Penalty: 5 penalty units.
39. Estate agent's use of trust money
(1) An estate agent who holds any money on behalf of
another person must not take or use any of that
money unless at the time of making any payment
or use he or she—
(a) has previously obtained the principal's
written authority to do so; and
(b) enters in the trust record details of the
transaction and full and accurate particulars
of any amount due from that person to the
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agent which the taking or use is intended to
satisfy.
Penalty: 5 penalty units.
(2) If an estate agent takes or uses any money held on
behalf of another person, the agent must, as soon
as possible after doing so, account to the person
on whose behalf the money was held.
Penalty: 5 penalty units.
(3) In relation to any money held by an estate agent
on behalf of another person, the estate agent must
keep on the appropriate trust file full and accurate
particulars of
(a) all expenses incurred by the agent; and
(b) all payments made out of the agent's own
money; and
(c) commission and other charges relating to any
payment made out of the money.
Penalty: 5 penalty units.
40. Trust account receipt forms—cessation of business or
death of estate agent
(1) Except in the case of a partnership, an individual
estate agent or a corporation must immediately
give to the auditor any unused trust account
receipt forms in the agent's possession if the estate
agent or corporation ceases to carry on the
business of an estate agent.
Penalty: 5 penalty units.
(2) The auditor must destroy those forms and notify
the Authority of their destruction.
Penalty: 5 penalty units.
(3) If an estate agent dies who is not in partnership
with another estate agent carrying on an estate
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agency business, the auditor of the deceased
agent's trust accounts must immediately on
becoming aware of the agent's death
(a) notify the Authority; and
(b) take charge of any unused trust account
receipt forms of the agent and deliver those
forms to
(i) the executor or administrator of the
estate of the agent; or
(ii) the Authority.
Penalty: 5 penalty units.
(4) The auditor of the trust accounts of a corporation
must notify the Authority immediately on
becoming aware of the death of an agent who was
the only director of the corporation who held an
estate agent's licence.
Penalty: 5 penalty units.
41. Estate agent to appoint an auditor
An estate agent must appoint an auditor before
receiving or holding trust money and, if he, she or
it has not previously advised the Authority of the
appointment in his, her or its licence application,
must within 14 days give written notice of the
appointment to the Authority in the form of Form
5.
Penalty: 5 penalty units.
42. Change of auditor
(1) An estate agent must not terminate the
appointment of an auditor, with the intention of
appointing another auditor, without first satisfying
the Authority that it is reasonable to do so.
Penalty: 5 penalty units.
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(2) If an estate agent changes his, her or its auditor
after satisfying the Authority that it is reasonable
to do so, the agent must within 14 days give
written notice of the change to the Authority in
the form of Form 6.
Penalty: 5 penalty units.
(3) An estate agent must notify the Authority of the
appointment of another person or firm to audit his,
her or its trust accounts, within one month of
becoming aware that his, her or its auditor has
(a) retired from practice; or
(b) ceased to be qualified to audit trust accounts;
or
(c) ceased their employment; or
(d) died.
Penalty: 5 penalty units.
(4) The Authority may extend the period of one
month referred to in sub-regulation (3).
(5) An estate agent, when his, her or its auditor
(a) retires from practice; or
(b) has his, her or its appointment end or ended;
or
(c) ceases to be qualified to audit trust accounts;
or
(d) dies
may only continue to receive and hold trust
money if the agent replaces the auditor within one
month of becoming so aware.
(6) The Authority may extend the period of one
month referred to in sub-regulation (5).
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43. Approval of firm as auditor under section 66 of the
Act
A firm seeking to act as an auditor under section
64, 64A or 64B of the Act must apply in writing
to the Authority for approval.
44. Revocation of approval or determination of
ineligibility of auditor
(1) If the Authority considers that an auditor (being a
firm approved by the Authority under section 66
of the Act) has contravened or failed to comply
with any section of the Act or any of these
Regulations relating to the duties of an auditor,
the Authority may—
(a) revoke the approval;
(b) refer for investigation any particulars
concerning the auditor's conduct to
(i) any professional body of which that
auditor is a member; and
(ii) the Australian Securities Commission
with a view to having the Commission
refer the matter to the Companies
Auditors and Liquidators Disciplinary
Board.
(2) If the Authority considers that an auditor (not
being a firm approved by the Authority under
section 66 of the Act) has contravened or failed to
comply with any section of the Act or any of these
Regulations relating to the duties of an auditor,
the Authority may
(a) order that the auditor is no longer eligible to
act as an auditor under section 64, 64A or
64B of the Act;
(b) refer for investigation any particulars
concerning the auditor's conduct to
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(i) any professional body of which that
auditor is a member; and
(ii) the Australian Securities Commission
with a view to having the Commission
refer the matter to the Companies
Auditors and Liquidators Disciplinary
Board.
(3) If the Authority revokes an approval under subregulation (1) or orders that an auditor is no
longer eligible to act as an auditor under subregulation (2), the Authority must notify every
estate agent whose trust accounts are audited by
that person or firm of the revocation.
45. Resignation of an auditor
An auditor must within 14 days give written
notice to the agent and the Authority if he or
she
(a) ceases employment as the agent's auditor; or
(b) retires from practice; or
(c) ceases to be qualified to audit trust accounts;
and
give the date of the cessation of employment,
retirement or ceasing to be qualified to audit trust
accounts.
Penalty: 5 penalty units.
46. Auditing of trust accounts
An auditor must
(a) audit trust accounts in accordance with
generally accepted auditing standards and
practice; and
(b) be satisfied that the trust record was kept in
accordance with the requirements of the Act,
these Regulations and any other relevant
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Acts and regulations during the period for
which those accounts are audited.
47. Estate agent's notification of trust account deficiency
(1) An estate agent must notify the agent's auditor and
the Authority immediately on becoming aware of
any deficiency in his, her or its—
(a) trust account; or
(b) trust ledger account.
(2) The estate agent must include in the notification
of the deficiency details of
(a) the date on which it occurred; and
(b) the amount; and
(c) the reason why it occurred; and
(d) full particulars of any action taken to restore
it.
Penalty: 5 penalty units.
48. Auditor's notification of trust account deficiency
(1) An auditor must notify the estate agent and the
Authority immediately on becoming aware of or
having reasonable ground to suspect any
deficiency in the agent's
(a) trust account; or
(b) trust ledger account.
(2) The auditor must include in the notification of the
deficiency, details of
(a) the date on which it occurred; and
(b) the amount; and
(c) the reason why it occurred; and
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(d) full particulars of any action taken to restore
it.
Penalty: 5 penalty units.
49. Auditor's recommendations
(1) Subject to this regulation, an estate agent must,
without delay, adopt any recommendation made
by an auditor in his or her report where the
recommendation arises from a breach of the Act
or these Regulations.
Penalty: 5 penalty units.
(2) An estate agent who considers that it would be
unfair or unreasonable for him, her or it to be
obliged to adopt an auditor’s recommendation
may notify the Authority of the objection and
request its consideration.
(3) On receiving such a notification and request, the
Authority must decide whether it is fair and
reasonable for the estate agent to be obliged to
adopt the auditor's recommendation.
(4) The Authority must, within 14 days of the
Authority's decision, give to the estate agent
written notice of the decision.
(5) If the Authority does not uphold the objection, the
estate agent must adopt without undue delay the
recommendation on receiving the written notice.
Penalty applying to this sub-regulation: 5 penalty
units.
50. Report of auditor under section 64 of the Act
The auditor must make the report under section 64
of the Act in the form of Form 7.
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51. Statutory declaration under section 69(1) of the Act
The statutory declaration under section 69(1) of
the Act must be in the form of Form 8.
_______________
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PART 4GUARANTEE FUND
52. Claims against the Fund
A claim for compensation from the Estate Agents'
Guarantee Fund in respect of a monetary loss
under section 81(1) of the Act must be made in
the form of Form 9.
53. Disallowance of a claim against the Fund
The notice of the Authority's disallowance of all
or part of a claim referred to in section 81(5) of
the Act must be in the form of Form 10.
_______________
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SCHEDULE
FORM 1
Regulation 18
Section 51
STATEMENT CONCERNING PROMISE OF FINANCE BY
AUCTIONEER OR ESTATE AGENT TO PURCHASER OR
PERSON ACTING ON BEHALF OF PURCHASER
This statement is given by
(Name of auctioneer/estate agent)
in relation to (Address or description of real estate or business to be sold)
Seller's name
Address
Purchaser's name
Address
Details of any promise made by the auctioneer/estate agent (or by any
employee or person acting on behalf of the auctioneer or estate agent)
concerning the obtaining of a loan to help finance the purchase of the real estate
or business:
Amount of loan $
Rate of interest % per annum
Date by which loan is to be repaid
/ /
Amount of repayment instalments
Interval at which repayments to be made
Name of lender
The loan *is to be/*is not to be obtained by the *auctioneer/*estate
agent
Any other promise which may previously have been made concerning
the obtaining of a loan to help finance the purchase of the real estate or
business is withdrawn.
This statement is given on
/
/
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Signed
Auctioneer/Estate Agent
(or person authorised in writing by Auctioneer/Estate Agent).
I, [Name of person to whom notice is given]
acknowledge that I have received a copy of this statement.
Signed
*Delete if not applicable.
_______________
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FORM 2
Regulation 19
Section 52
STATEMENT BY A VENDOR OF A SMALL BUSINESS
Please note the following:
1. A small business is a business in which the goodwill, plant, equipment
and fittings being sold have a total price of $200 000 or less.
2. This statement includes the Trading Statement.
3. A vendor who sells a business for $200 000 or less must sign this
statement.
4. The vendor or agent must give the purchaser a copy of this completed
vendor's statement
—before the purchaser signs the contract AND
—before the deposit is paid.
5. The financial and accounting information in the Trading Statement must
cover trading for at least 24 months or, if the vendor has owned the
business for a shorter period, that period.
6. In the Trading Statement, the date on which the last accounting period
ends must be a date less than 4 months prior to the day of the sale.
Please complete the following:
VENDOR'S AGENT
Address
DX
Phone
Fax
VENDOR
Address
Phone
PURCHASER
Address
Phone
BUSINESS NAME
Address
Type
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WARNING
The purchaser may avoid the contract
if information in this statement is
inaccurate or incomplete.
1. BUSINESS INFORMATION
1.1 The vendor commenced the business on
If the vendor purchased the business within 12 months of
the date the purchaser signed this statement, give the name
and address of the previous vendor.
A Small Business Vendor's Statement (Section 52 Statement)
of the previous vendor *is/*is not available.
1.2 The normal hours of trading are
) Monday-Friday
) Saturday
) Sunday
1.3 Business documents include
(a) certificate of registration of business name
(b) all licences, quotas, franchises and other similar
documents relating to the business
(c) all permits and registrations necessary to enable the
purchaser to lawfully carry on the business.
1.4 Business documents are
*available for inspection at the office of the vendor's agent.
*available for inspection at the business premises.
*attached.
2. PREMISES
*The vendor is the owner of the premises in which the
business is being conducted and the premises *are/*are not
being sold with the business.
A vendor who is the owner of the premises in which the
business is being conducted need not answer 2.1–2.5.
2.1 The vendor carries on the business in premises occupied
under
* an oral lease
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* a written lease
2.2 The rent is $
payable in *arrears/*advance each
2.3 The lease provides
(a) Commencement date
(b) Term
(c) Amount of rent
(d) Options
(e) Method of rent review
(f) Rent review period
(g) Lessor's name
address
(h) Lessor's agent name
address
2.4 *(a) Rates, taxes and outgoings payable by the lessee and
the lessor and their amounts are
Council rates
Water rates
Land tax
Insurance on premises
Body corporate charges
Lessor's operating expenses
Other (specify)
TOTAL
Payable by Lessee
Payable by Lessor
(if known)
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
*(b) The total amount of rates and outgoings payable by
the lessee do not exceed $
per annum.
2.5 Copies of the current lease and any assignments are
* available from the Vendor's agent.
* available from the Vendor.
* attached.
2.6 The registered proprietor of the land on which the business
operates is
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The title particulars are *vol.
*book
folio
No.
2.7 The land on which the business operates *is/*is not subject
to a mortgage. If the freehold is subject to a mortgage, the
mortgagee's consent to the assignment of the lease or a new
lease would be required.
2.8 The business premises are zoned
under the
administered by
planning scheme,
authority.
2.9 Planning information is
Planning instrument
The responsible authority
Zoning and/or Reservation
3. TRADING AND PROFITS
3.1 The trading and profit results of the business for the
accounting periods commencing on. . . . . . . and ending on .
. . . . . . are in the attached Trading Statement.
(Show the commencing date of the first accounting period
and the ending date of the last accounting period in the
Trading Statement)
3.2 Members of the vendor's family *worked/*did not work in
the business and *were/*were not paid wages. Payments
made to family or other associated persons have been
included in *Item 4(x)/*Item 8(a) in the attached Trading
Statement.
4. ENCUMBRANCES
The business and assets sold with the business are the
vendor's sole property, except for the assets and
encumbrances below.
Asset
Lease/
Hire
Rental/
Loan
Financier/
Owner
Monthly
Payment
Commencement
Date
Term
Debt
Secured
5. GENERAL DISCLOSURES
5.1 Since the end of the last accounting period in the Trading
Statement the business *has/*has not carried on
satisfactorily.
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5.2 Since the end of the last accounting period in the Trading
Statement
* (a) No circumstances adversely affecting, or likely to
adversely affect, the conduct of the business, its
trading or its trading profits, have arisen.
*(b) Since / / the following circumstances likely to
affect the conduct of the business, its trading or its
trading profits, have arisen.
*(c) The following circumstances adversely affecting the
conduct of the business, its trading or its trading
profits, have arisen.
These circumstances are *likely/*not likely to adversely
affect the conduct of the business, its trading or its profits.
5.3 The explanation of the unsatisfactory business performance
and the circumstances adversely affecting or likely to
adversely affect the business are
* Delete if not applicable.
TRADING STATEMENT
BY A VENDOR OF A SMALL BUSINESS
Business name and address
Vendor
Vendor's Agent
Phone
The figures in this Statement relate to the business being sold and are prepared
on a *cash/* accrual basis.
This Trading Statement is part of the Vendor's Statement required by section 52
of the Estate Agents Act 1980.
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A
Accounting period
Commencing
Ending
(The figures for the most recent period should be
in column C)
Number of weeks of operation
1.
TOTAL GROSS INCOME OF
BUSINESS
(a) Income from sales of goods/services
provided (cash/credit/other)
(b) Commissions received
(c) Other income
TOTAL GROSS INCOME OF BUSINESS for
period
Average per week
2.
COST OF GOODS SOLD/SERVICES
PROVIDED
(a)
(b)
(c)
(d)
Opening stock **
Plus purchases in period
Less stock at end of period**
Less goods/services taken for own
use**
COST OF GOODS SOLD/ SERVICES
PROVIDED
**Indicate method of valuation
3.
GROSS BUSINESS PROFIT
[Item 1 – Item 2]
GROSS BUSINESS PROFIT as % of
TOTAL GROSS INCOME
OF
BUSINESS [Item 1]
39
B
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A
4.
EXPENSES DIRECTLY RELATED TO
OPERATING THE BUSINESS
(a) Accounting charges
(b) Advertising
(c) Bad debts written off
(d) Bank and transaction charges
(excluding interest)
(e) Cartage and freight
(f) Cleaning, laundry, protective
clothing
(g) Electricity, fuel, gas
(h) Equipment rental/hire (not hire
purchase)
(i) Insurances (excluding motor
vehicle)
(j) Land taxes
(k) Legal expenses
(l) Licences, registration, trade
subscriptions
(m) Motor vehicle running costs for
business purposes; ie. petrol,
maintenance, insurance, registration
(excluding depreciation)
(n) Packaging and wrappings
(o) Postage, printing, stationery
(p) Rates and outgoings
(q) Rent of business premises
(r) Repairs and maintenance to business
premises, plant, equipment, chattels
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Estate Agents (General, Accounts and Audit) Regulations 1997
S.R. No. 41/1997
A
(s) Service contract charges, agency fees,
etc.
(t) Staff amenities
(u) Superannuation payments for benefit
of employees
(v) Telephone
(w) Travel and accommodation
(x) Wages paid to employees (excluding
vendor/associated persons)
Amount
Number of employees . . . . . . . . . .
Average hours per week worked by
employees. . . . . . . . . . . . .
(y) Workcare premiums and other wage
costs and taxes
(z) Other business expenses (itemise)
Sub-total
5.
DEPRECIATION on motor vehicles,
plant, equipment, chattels, etc. used for
business purposes.
Note: Attach depreciation schedule where
items are to be transferred with the
business.
TOTAL OPERATING EXPENSES
directly related to the business
[Item 4 + Item 5]
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A
6.
NET BUSINESS PROFIT
Before taking into account present vendor's
additional outgoings/expenses and business
financing costs [gross business profit less
total operating expenses: (Item 3 – total of
Item 4 and
Item 5)]
7.
FINANCING AND OTHER COSTS
APPLICABLE TO BUSINESS
(a) Hire purchase interest/chattel finance
charges (not including principal
repayments)
(b) Chattel lease payments
(c) Other costs (itemise)
TOTAL FINANCE AND OTHER
COSTS
8.
ADDITIONAL OUTGOINGS/
EXPENSES INCURRED BY OR
ATTRIBUTABLE TO PRESENT
VENDOR
(a) Wages paid to vendor/associated
persons (average hours per week
..............)
(b) Superannuation contributions for
benefit of vendor
(c) Sickness, disability and other
insurance in respect of vendor
(d) Interest on money borrowed for
business use
(e) Private motor vehicle lease payments
and finance charges
(but not hire purchase principal)
(f) Other outgoings/expenses (itemise)
TOTAL ADDITIONAL
OUTGOINGS/EXPENSES
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9.
A
B
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
C
NET PROFIT TO PRESENT
VENDOR
[Item 6 – total of (Item 7 + Item 8)]
10. Trade debtors (owed to business) at end of
accounting period C
Less provision for doubtful debts
Net debtors
11. LIABILITIES
(a) Trade creditors (owed by business) at
end of accounting period C
(b) Future outgoings due to employees at
end of accounting period C
(i) Holiday pay due but not taken
(ii) Long service leave entitlements
due but not taken
(iii) Other
(c) Advertising and business directory
contracts
(d) Other
TOTAL LIABILITIES
To be completed by the Practising Accountant who is reporting on the Trading
Statement.
I
declare that
of
(i)
*I am registered as an auditor by the Australian Securities Commission;
or
(ii)
*I am a Member of the Australian Society of Certified Practising
Accountants or the Institute of Chartered Accountants in Australia; or
(iii)
*I have attained the status of Member or Fellow of either the National
Institute of Accountants or the Association of Taxation and
Management Accountants; or
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(iv)
*I have attained the status of Fellow of the National Tax & Accountants'
Association Limited
and report that the accounting and financial information set out in the
Trading Statement is in accordance with the books of account of the
Vendor and is true and fair to the best of my knowledge and belief, and
make additional comments
Practising Accountant Signature
Qualifications
Membership designation/status
Address
Phone
Date
/
Name
/
The vendor declares that the information in this Statement (including Trading
Statement) is accurate and complete.
Vendor's signature
Date
/
/
Signed by the purchaser who acknowledges receipt of this completed vendor's
statement
Date of signature
/
/
*Delete if not applicable.
_______________
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FORM 3
Regulation 20
Section 43
NOTICE OF FRANCHISING AGREEMENT
I,
* on behalf of (name of corporation)
of (address of principal office)
give notice that I have entered into a franchising agreement with
of
The agreement *started/*will start to operate on (date).
List the addresses of the offices covered by the agreement.
I have attached to this notice a copy of the agreement and any ancillary
agreements.
I undertake to notify the Estate Agents Licensing Authority if the agreement
alters or ends.
Signed
Dated
(Licensed Estate Agent).
* Delete if not applicable.
_______________
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FORM 4
Regulation 21
Section 92
CERTIFICATE BY DIRECTOR
I certify that (name of person)
*is/*is not the holder of an estate agent's licence
or
*was on (date/s)
*was from (date) to (date)
*was not on (date/s)
*was not between (date) and (date)
the holder of an estate agent's licence.
Dated
................
......................................
Director
*Delete if not applicable.
_______________
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FORM 5
Regulation 41
NOTICE OF APPOINTMENT OF AUDITOR
I,
*on behalf of (name of corporation)
of (address of principal office)
give notice that I have appointed as auditor of *my/*the corporation's trust
accounts
Name of auditor appointed
Address of auditor
Date of appointment
/
/
Signature of agent
Date
/
/
Auditor's Statement of Acceptance
I,
accept the appointment as auditor of the trust account(s) of the above estate
agent
Signature of auditor
Date
/
/
*Delete if not applicable.
_______________
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FORM 6
Regulation 42
NOTICE OF CHANGE OF AUDITOR
I,
*on behalf of (name of corporation, if applicable)
of (address of principal office)
give notice of change of *my/*the corporation's auditor of trust accounts
Name of auditor newly appointed
Address of auditor
Date of appointment
/
/
Signature of estate agent
Date
/
/
Auditor's Statement of Acceptance
I,
accept the appointment as auditor of the trust account(s) of the above estate
agent
Signature of auditor
Date
/
/
*Delete if not applicable.
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Estate Agents (General, Accounts and Audit) Regulations 1997
S.R. No. 41/1997
FORM 7
Regulation 50
Section 64
AUDITOR'S REPORT FOR THE PERIOD
TO
I, (name of auditor)
of (name of auditor's firm)
of (address of firm)
report
1. That neither I nor my firm are disqualified under section 66 of the Estate
Agents Act 1980.
2.
*That I am a practising public accountant as defined in section 4 of the
Estate Agents Act 1980
*That where my firm is the appointed auditor it is approved by the Estate
Agents Licensing Authority to audit the trust accounts of licensed estate
agents.
*That I am a member of a prescribed accounting body who satisfies the
prescribed conditions (if any) and has been approved by the Estate Agents
Licensing Authority.
3.
That I have examined the accounting records of trust money in respect of
the period
required by section 63 of the Estate Agents Act 1980
to be maintained by
(name(s) of agent)
carrying on business under the name of
at the following address(es)
4.
That in carrying out the audit, *I/ *we
(a)
made test examinations of the transactions recorded in the trust
account(s) in accordance with generally accepted auditing
standards and practice; and
(b) established that the trust bank accounts were properly kept.
5.
That *no breach/* the following breaches of the Act or the Regulations
relating to the receipting, banking and disbursement of trust money or any
other matter referred to in section 64(15) of the Act was detected by
*me/*us in respect of the period covered by *my/*our audit.
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Estate Agents (General, Accounts and Audit) Regulations 1997
S.R. No. 41/1997
6.
That *I/*we are of the opinion that
(a)
the Agent has complied with the provisions of section 60 of the
Act; and
(b) the accounting records of trust money in respect to the period of
this audit have been properly kept in accordance with the
provisions of the Act and the Regulations.
Signed
Dated
NOTE:
(a)
Where the report is on the trust accounts of a partnership of estate
agents, the names of the individual partners must be specified.
(b) Where the report is in respect of more than one office, the address of
each office must be specified.
(c)
A report made or given by a firm appointed as auditor must be signed
in the firm's name and in the name of a member of the firm who is a
practising public accountant.
* Delete if not applicable.
_______________
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Estate Agents (General, Accounts and Audit) Regulations 1997
S.R. No. 41/1997
FORM 8
Regulation 51
Section 69
STATUTORY DECLARATION BY A LICENSED ESTATE
AGENT WHO NEITHER RECEIVED NOR HELD TRUST
MONEY DURING THE RELEVANT YEAR
*I,
whose residential address is
and whose registered office is at
*I,
whose residential address is
being the officer in effective control of
the registered office of which is
declare that in the course of the year which ended on the 30th day of June
*I/*the corporation neither received nor held as an estate agent any
money for or on behalf of any other person.
I acknowledge that this declaration is true and correct and I make it in the belief
that a person making a false declaration is liable to the penalties for perjury.
Signed
Declared at
in the State of Victoria this
day of
Before me
(Witness to print or stamp name and address below the signature)
A person authorised under section 107A(1) of the Evidence Act 1958 to
witness the signing of a statutory declaration.
You will note that section 109 of the Evidence Act 1958 requires a person who
witnesses a declaration to 'legibly write, type or stamp his or her name and
address below his or her own signature. Penalty: 1 penalty unit.'
* Delete section and/or words that are not applicable.
_______________
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Estate Agents (General, Accounts and Audit) Regulations 1997
S.R. No. 41/1997
FORM 9
Regulation 52
Section 81
CLAIM FOR COMPENSATION FROM ESTATE AGENTS'
GUARANTEE FUND
I,(name)
of (address)
apply for compensation for the monetary loss I suffered as a result of a
defalcation
committed by (name of agent or employee of agent)
of (name and address of agent's or employee's firm)
The defalcation was in respect of
The amount of my actual monetary loss was
$
Less the amount or value of any money or other benefits I have received
or will be able to recover from a source other than the Estate Agents' Guarantee
Fund
$
Net amount claimed
$
Details of the action (if any) I have taken to recover my loss are as
follows:
In support of this application I attach *an affidavit/*a statutory
declaration which
(a)
verifies the above details of my claim; and
(b) gives full details of my claim; and
(c)
Signed
refers to all documents, accounts and receipts in my possession in
support of my claim.
Dated
Note: The claimant must forward with the claim all documents supporting the
claim.
* Delete if not applicable.
_______________
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Estate Agents (General, Accounts and Audit) Regulations 1997
S.R. No. 41/1997
FORM 10
Regulation 53
Section 81
NOTICE OF DISALLOWANCE OF CLAIM FOR
COMPENSATION FROM THE ESTATE AGENTS'
GUARANTEE FUND
To: (name of claimant)
of (address)
The Estate Agents Licensing Authority *wholly disallows/*partly disallows
your claim for compensation from the Estate Agents' Guarantee Fund.
**The Estate Agents Licensing Authority disallows $
of your claim.
The reasons for the *disallowance/*partial disallowance are
Signed
Dated
(For And On Behalf Of the Estate Agents Licensing Authority
*Delete if not applicable.
** Delete if claim wholly disallowed.
═══════════════
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S.R. No. 41/1997
Notes
NOTES
1
S.R. No. 129/1992.
2
Refer to Regulation 32.
3
Refer to Regulation 17.
54