Auctioneers and Real Estate Agents Regulations 1992

Auctioneers and Real Estate Agents Regulations 1992

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, hereby make the following regulations under the Auctioneers and Real Estate Agents Act 1991 .

G. S. M. GREEN

Deputy Governor, For and on behalf of Governor

By His Excellency's Command,

RONALD CORNISH

Minister for Justice

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Auctioneers and Real Estate Agents Regulations 1992 .

2.   Commencement

These regulations take effect on the day proclaimed under section 2 of the Auctioneers and Real Estate Agents Act 1991 .

3.   Interpretation

(1)  In these regulations, unless the contrary intention appears –

the Act means the Auctioneers and Real Estate Agents Act 1991 ;

accounting record means an accounting record that is specified in regulation 13(2) ;

approved auditor means a person who is –

(a) a member of either the Institute of Chartered Accountants or the Australian Society of Certified Practising Accountants; and

(b) [Regulation 3 Subregulation (1) amended by No. 42 of 2001, Sched. 2, Applied:15 Jul 2001] is registered as an auditor under the Corporations Act;

business book means a book, or binder, that a real estate agent is required to keep under Division 2 of Part 2 ;

business premises, in relation to a principal auctioneer or real estate agent, means a place specified in the auctioneer's or agent's licence as a place where he or she is authorized to carry on the business of an auctioneer or real estate agent;

business record means a document that a principal auctioneer or real estate agent is required to complete under Division 1 or 2 of Part 2 ;

member means a member of the Council;

President means the President of the Council;

record means –

(a) a business record or accounting record; or

(b) any other document relating to a principal auctioneer's or real estate agent's business transactions;

secretary means the secretary of the Council;

trust account bank statement means a statement that –

(a) is issued to a principal auctioneer or real estate agent by a bank at which the auctioneer or agent keeps a trust account; and

(b) records the deposits and payments in respect of that trust account.

(2)  In these regulations, a reference to a form by number is a reference to the form so numbered in Schedule 1 .

PART 2 - Business records

Division 1 - Business records to be kept by auctioneers

4.   Records of appointment

(1)  A real estate auctioneer who is appointed to auction any real property must complete a document, called a "record of appointment", setting out particulars of the appointment and the property.

(2)  The record of appointment is to be completed as soon as practicable after the appointment is made and is to contain at least the following information:

(a) the date on which the appointment was made;

(b) the name and address of –

(i) the owner of the property; or

(ii) if the appointment was made by a person other than the owner – that other person;

(c) the address of the property;

(d) a description of the property;

(e) the reserve price, if any;

(f) any special conditions relating to the auction.

(3)  The requirement for a real estate auctioneer to complete a record of appointment is in addition to the requirements of section 18 of the Act.

5.   Auction sales and stock records

(1)  A principal auctioneer who takes possession, custody or control of any personal property, other than livestock, for the purpose of auctioning that property must complete –

(a) a preliminary document, called an "auction stock record"; and

(b) if the property is sold at auction – a further document, called an "auction sales record" –

in respect of the property.

(2)  The auction stock record and the auction sales record may be combined.

(3)  The auction stock record is to be completed as soon as practicable after the auctioneer takes possession, custody or control of the property and is to contain at least the following information:

(a) the date on which the auctioneer took possession, custody or control of the property;

(b) the name and address of –

(i) the owner of the property; or

(ii) if the property was consigned or delivered to the auctioneer by a person other than the owner – that other person;

(c) full particulars of the property including details of any marks, numbers or special characteristics that, in the ordinary course of trade, are relied on for the identification of such property;

(d) the reserve price, if any.

(4)  Notwithstanding subregulation (3)(c) , if the property consists of articles –

(a) the individual value of which is reasonably estimated by the auctioneer to be less than $25; and

(b) which were received from the same owner or consignor –

the property may be described in the auction stock record as "sundry articles".

(5)  The auction sales record is to be completed as soon as practicable after the completion of the sale of the property and is to contain at least the following information:

(a) the date of the sale;

(b) a description of the property sold and a reference to the number of the corresponding entry in the auction stock record;

(c) the price realized;

(d) the name given by the purchaser, or an entry sufficient to enable the auctioneer to identify the purchaser.

6.   Secondary auction sales records

(1)  A principal auctioneer who sells by auction any property, other than livestock, of which that auctioneer does not have possession, custody or control must complete a document, called a "secondary auction sales record", setting out particulars of the property and the sale.

(2)  The secondary auction sales record is to be completed as soon as practicable after the sale of the property and is to contain at least the following information:

(a) the date of the sale;

(b) a description of the property sold;

(c) the price realized;

(d) the name given by the purchaser, or an entry sufficient to enable the auctioneer to identify the purchaser.

7.   Livestock auction sales records

(1)  A principal auctioneer who is appointed to auction any livestock must complete a document, called a "livestock auction sales record", setting out particulars of the appointment and the auction.

(2)  The principal auctioneer must enter at least the following information in the livestock auction sales record before auctioning the livestock:

(a) the number of livestock;

(b) a description of the livestock;

(c) the name of the vendor.

(3)  The principal auctioneer must, if the livestock are sold at auction, enter the following information in the livestock auction sales record as soon as practicable after the auction:

(a) the date of the sale;

(b) the price realized;

(c) the name given by the purchaser, or an entry sufficient to enable the auctioneer to identify the purchaser.

Division 2 - Business records to be kept by real estate agents

8.   Listings

(1)  A real estate agent who is appointed to sell any real property must complete a document, called a "listing", setting out particulars of the appointment and the property.

(2)  The listing is to contain at least the following information:

(a) the date on which the appointment was made;

(b) the name and address of –

(i) the owner of the property; or

(ii) if the appointment was made by a person other than the owner – that other person;

(c) the address of the property;

(d) a description of the property.

(3)  Listings are to be kept in loose-leaf form in a book, or binder, called a "listings book".

(4)  The requirement for a real estate agent to complete a listing is in addition to the requirements of section 24 of the Act.

9.   Sales records

(1)  A real estate agent who sells any real property for a client must complete a document, called a "sales record", setting out particulars of the sale.

(2)  The sales record is to contain at least the following information:

(a) the date of the completion of the sale;

(b) the name of the vendor;

(c) the name given by the purchaser;

(d) the sale price;

(e) the commission charged by the agent;

(f) the name of the real estate sales consultant, if any, who effected the sale.

(3)  Sales records are to be kept in loose-leaf form in a book, or binder, called a "sales book".

Division 3 - Control of business records

10.   Council directions in relation to business records, &c.

Subject to this Part, the Council may, either generally or in a particular case, give directions in writing to –

(a) principal auctioneers and real estate agents as to the manner in which business records are to be kept; and

(b) real estate agents as to the manner in which business books are to be kept.

11.   Business records offences

(1)  A principal auctioneer or real estate agent must not –

(a) fail to complete a business record when required to do so under this Part; or

(b) fail to include in a business record any information that, under this Part, is required to be contained in that record; or

(c) knowingly include false or misleading information in a business record.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A real estate agent must not fail to keep a business book when required to do so under this Part.

Penalty:  Fine not exceeding 20 penalty units.

(3)  A principal auctioneer must comply with any directions given to that auctioneer by the Council as to the manner in which that auctioneer's business records are to be kept.

Penalty:  Fine not exceeding 20 penalty units.

(4)  A real estate agent must comply with any directions given to that agent by the Council as to the manner in which that agent's business records, or business books, are to be kept.

Penalty:  Fine not exceeding 20 penalty units.

12.   Retention and disposal of business records

(1)  In this regulation,

secure method means burning, shredding, pulping or burying.

(2)  A person who ceases to carry on the business of an auctioneer or real estate agent must, as soon as practicable after ceasing to carry on that business, give the business records held by that person to –

(a) the Council; or

(b) with the approval in writing of the Council – a principal auctioneer or real estate agent.

Penalty:  Fine not exceeding 50 penalty units.

(3)  A principal auctioneer or real estate agent who completes a business record in respect of any matter or acquires a business record under subregulation (2)  –

(a) must retain that business record for a period of not less than 6 years; and

(b) must not, in that period, remove that business record from the State; and

(c) must, at the expiration of that period, dispose of that business record by a secure method.

Penalty:  Fine not exceeding 50 penalty units.

(4)  Notwithstanding subregulation (3) , the Council may authorize a principal auctioneer or real estate agent to deal with a business record otherwise than in accordance with that subregulation.

PART 3 - Accounts and accounting records

Division 1 - Preliminary

13.   Accounting records to be kept

(1)  A principal auctioneer or real estate agent must keep accounting records which –

(a) sufficiently and correctly record and explain the auctioneer's or agent's business transactions; and

(b) sufficiently and correctly record and explain the auctioneer's or agent's receipts and payments of trust money; and

(c) enable the auctioneer's or agent's trust accounts and accounting records to be conveniently and properly audited.

(2)  For the purposes of subregulation (1) , the accounting records are to include –

(a) trust account receipts; and

(b) trust account deposit forms; and

(c) trust account cheques; and

(d) a trust account cash book, or similar record, showing particulars of receipts and payments of trust money; and

(e) a trust account ledger; and

(f) a trust account journal, or similar record, showing particulars of entries to the trust account ledger that do not involve the receipt or payment of money; and

(g) monthly reconciliations of the trust account with the trust account cash book and trust account bank statement; and

(h) a schedule of trust account ledger balances.

Division 2 - Accounting records

14.   Trust account receipts

(1)  A principal auctioneer or real estate agent who receives any trust money from a person must immediately issue that person with a receipt, called a "trust account receipt".

Penalty:  Fine not exceeding 50 penalty units.

(2)  The trust account receipt is –

(a) to have printed on it –

(i) the name of the auctioneer or agent or the business name, if any, under which the auctioneer or agent carries on business; and

(ii) the words "trust account"; and

(iii) if the auctioneer or agent is a corporation – the corporation's Australian Company Number; and

(b) to specify –

(i) the date on which the receipt was issued; and

(ii) the name of the person on whose behalf the money was received; and

(iii) if the money was received to be held by the auctioneer or agent as stakeholder, or in trust, pending the completion of any transaction – a description of the transaction; and

(iv) the amount of money received; and

(v) the form in which the money was received; and

(c) unless the Council approves otherwise in writing – to be in duplicate and issued out of a bound book of trust account receipt forms that are numbered sequentially by machine; and

(d) to be signed by –

(i) the auctioneer or agent; or

(ii) a person engaged by the auctioneer or agent.

(3)  A principal auctioneer or real estate agent must retain the duplicate of each trust account receipt issued by or on behalf of that auctioneer or agent.

15.   Trust account deposit forms

(1)  For the purposes of section 71(1) of the Act, a principal auctioneer or real estate agent must pay trust money into a trust account by means of a form, called a "trust account deposit form".

Penalty:  Fine not exceeding 50 penalty units.

(2)  The trust account deposit form is –

(a) to have printed on it –

(i) the name of the auctioneer or agent or the business name, if any, under which the auctioneer or agent carries on business; and

(ii) the words "trust account"; and

(b) to specify –

(i) the date of the payment into the bank; and

(ii) the number of the trust account; and

(iii) if the money was in the form of a cheque – the name of the drawer of the cheque; and

(c) unless the Council approves otherwise in writing – to be in duplicate and issued out of a bound book of trust account deposit forms; and

(d) to be signed by –

(i) the auctioneer or agent; or

(ii) a person engaged by the auctioneer or agent.

16.   Trust account cheques

(1)  A principal auctioneer or real estate agent must not make any payment of trust money from a trust account except by means of a cheque, called a "trust account cheque".

Penalty:  Fine not exceeding 50 penalty units.

(2)  The trust account cheque is –

(a) to have printed on it –

(i) the name of the auctioneer or agent or the business name, if any, under which the auctioneer or agent carries on business; and

(ii) the words "trust account"; and

(iii) if the auctioneer or agent is a corporation – the corporation's Australian Company Number; and

(b) to specify –

(i) the name of the person to whom the payment was made; and

(ii) the date on which the cheque was written; and

(iii) the serial number of the cheque; and

(iv) the amount of the payment; and

(c) be signed by the licensed person in charge of the business premises at which the payment is made, either alone or in association with other persons.

(3)  Trust account cheques are to be numbered sequentially by machine.

17.   Trust account cash books

(1)  A principal auctioneer or real estate agent must keep a cash book or similar record, called a "trust account cash book", recording in sequential order particulars of the auctioneer's or agent's receipts and payments of trust money.

(2)  The following information is to be entered in the trust account cash book in respect of each receipt of trust money:

(a) the date on which the money was received;

(b) the name of the person on whose behalf the money was received;

(c) the folio account of the trust account ledger to which the payment was credited;

(d) a notation or code indicating the nature of the transaction in respect of which the money was received;

(e) the number of the trust account receipt issued for that money;

(f) the amount of money received.

(3)  The following information is to be entered in the trust account cash book in respect of each payment of trust money:

(a) the date on which the payment was made;

(b) the name of the person to whom the payment was made;

(c) the folio account of the trust account ledger to which the payment was debited;

(d) a notation, or code, indicating the nature of the transaction or the purpose for which the payment was made;

(e) the number of the trust account cheque by which the payment was made;

(f) the amount of money paid.

18.   Trust account ledgers

(1)  A principal auctioneer or real estate agent must keep a ledger, called a "trust account ledger" in respect of trust money held by that auctioneer or agent.

(2)  The trust account ledger is to have –

(a) separate identifiable folio accounts in respect of each person on whose behalf the auctioneer or agent holds trust money and each transaction in respect of which the auctioneer or agent holds money as stakeholder, or in trust, on behalf of that person; and

(b) sufficient information posted to each folio account to enable the nature of the relevant transaction to be clearly understood; and

(c) sufficient information posted to each folio account at all times to disclose the amount of money being held by the auctioneer or agent as stakeholder, or in trust, on behalf of the person in respect of whom that folio account is kept.

(3)  A principal auctioneer who conducts a chattel clearing auction is not required to keep a separate identifiable folio account in the trust account ledger for each vendor if –

(a) the auctioneer keeps a separate folio account in the trust account ledger in respect of that auction; and

(b) the transactions in respect of that auction are identified in the folio account as relating to that auction; and

(c) the folio account in respect of that auction is separately balanced.

19.   Trust account journals

(1)  A principal auctioneer or real estate agent must keep a journal or similar record, called a "trust account journal", recording in sequential order particulars of each transfer of trust money made by that auctioneer or agent.

(2)  The following information is to be entered in the trust account journal in respect of each transfer of trust money from one folio account of the trust account ledger to another folio account of the trust account ledger:

(a) the date of the transfer;

(b) a reference, by code or otherwise, to the folio account of the trust account ledger from which the money was transferred;

(c) a reference, by code or otherwise, to the folio account of the trust account ledger to which the money was transferred;

(d) a notation, or code, indicating the reason why the money was transferred.

20.   Monthly reconciliations of trust account

(1)  A principal auctioneer or real estate agent must, at least once in each month, prepare –

(a) an account or statement reconciling the trust account with the trust account cash book; and

(b) a further account or statement reconciling the trust account with the trust account bank statement.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A principal auctioneer or real estate agent must keep an account or statement prepared under subregulation (1) with the accounting records for the month to which the account or statement relates.

Penalty:  Fine not exceeding 20 penalty units.

21.   Schedule of trust account ledger balances

(1)  A principal auctioneer or real estate agent must, at least once in each month, prepare a schedule of trust account ledger balances recording the names of each of the auctioneer's or agent's clients and the amounts held on their behalf abstracted from the trust account ledger and showing a total amount that agrees with the reconciled trust account.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A principal auctioneer or real estate agent must keep a schedule of trust account ledger balances prepared under subregulation (1) with the accounting records for the month to which it relates.

Penalty:  Fine not exceeding 20 penalty units.

Division 3 - Control of accounts and accounting records

22.   Council directions in relation to accounting records

Subject to this Part, the Council may, either generally or in a particular case, give directions in writing to principal auctioneers and real estate agents as to the manner in which accounting records are to be kept.

23.   Accounting records offences

(1)  A principal auctioneer or real estate agent must not –

(a) fail to keep accounting records; or

(b) fail to include in an accounting record any information that, under this Part, is required to be contained in that record; or

(c) knowingly include false or misleading information in an accounting record.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A principal auctioneer or real estate agent must comply with any directions given to that auctioneer or agent by the Council as to the manner in which that auctioneer's or agent's accounting records are to be kept.

Penalty:  Fine not exceeding 20 penalty units.

24.   Accounting records may be prepared by computer

Accounting records may be prepared by computer but, in any such case, they are to be kept –

(a) in their printed form; and

(b) in discrete month order, the accounting records for each month standing alone –

unless the Council directs or approves otherwise in writing.

25.   Where accounting records are to be kept

(1)  A principal auctioneer or real estate agent must keep the auctioneer's or agent's accounting records at –

(a) the auctioneer's or agent's business premises; or

(b) if the auctioneer or agent carries on business at more than one place – the auctioneer's or agent's principal business premises.

Penalty:  Fine not exceeding 20 penalty units.

(2)  Notwithstanding subregulation (1) , an auctioneer or real estate agent who carries on business at more than one place –

(a) must ensure that he or she is able to issue trust account receipts at each of those places; and

(b) may, with the approval in writing of the Council – keep a separate set of accounting records at each of those places.

26.   Retention and disposal of accounting records

(1)  In this regulation,

secure method means burning, shredding, pulping or burying.

(2)  A person who ceases to carry on the business of an auctioneer or real estate agent must, as soon as practicable after ceasing to carry on that business, give the accounting records held by that person to –

(a) the Council; or

(b) with the approval in writing of the Council – a principal auctioneer or real estate agent.

Penalty:  Fine not exceeding 50 penalty units.

(3)  A principal auctioneer or real estate agent who keeps an accounting record in respect of any matter or acquires an accounting record under subregulation (2)  –

(a) must retain that accounting record for a period of not less than 6 years; and

(b) must not, in that period, remove that accounting record from the State; and

(c) must, at the expiration of that period, dispose of that accounting record by a secure method.

Penalty:  Fine not exceeding 50 penalty units.

(4)  Notwithstanding subregulation (3) , the Council may authorize a principal auctioneer or real estate agent to deal with an accounting record otherwise than in accordance with that subregulation.

27.   Notice of accounts

A principal auctioneer or real estate agent must –

(a) within 14 days after opening a trust account for the purposes of section 71 of the Act – give the Council notice in writing of –

(i) the name of the bank and the address of the branch of the bank at which the account was opened; and

(ii) the name and number of the account; and

(b) within 14 days after closing a trust account maintained for the purposes of section 71 of the Act – give the Council notice in writing of the closure.

Penalty:  Fine not exceeding 50 penalty units.

28.   Trust account reports

(1)  A principal auctioneer or real estate agent must, within one month after each 30 June and 31 December, complete and give the Council a report, called a "trust account report", in respect of each trust account kept by that auctioneer or agent in the 6 month period that ended on that 30 June or 31 December.

Penalty:  Fine not exceeding 50 penalty units.

(2)  The trust account report is to be in a form provided or approved by the Council and is to include the requirement for the auctioneer or agent to declare, in respect of the period of time to which the trust account report relates –

(a) whether the trust account was reconciled monthly with the trust account cash book and trust account bank statement; and

(b) whether the monthly schedule of trust account ledger balances agreed with those reconciliations; and

(c) whether the trust account was at any time in debit or had any unexplained credit balances; and

(d) that the auctioneer or agent did not draw any commission prior to the completion of any transaction without written authority; and

(e) whether the auctioneer's or agent's trust account was kept at a bank, of which the Council had notice under regulation 27 .

(3)  A principal auctioneer or real estate agent must not make a false declaration in a trust account report.

Penalty:  Fine not exceeding 50 penalty units.

(4)  A trust account report is to be signed –

(a) if the auctioneer or agent is a natural person who carries on business on his or her own account – that auctioneer or agent; or

(b) if the auctioneer or agent is a natural person who carries on business in partnership in accordance with section 29(2) of the Act – by a partner in that partnership; or

(c) if the auctioneer or agent is a body corporate that –

(i) is an exempt company under clause 17(3) of Schedule 3 to the Act; or

(ii) is the holder of a general auctioneers licence –

by a director of that body corporate; or

(d) if the auctioneer or agent is any other kind of body corporate – by a director of that body corporate who holds a real estate agents licence or real estate managers licence.

29.   Control of trust money

(1)  A principal auctioneer or real estate agent who holds any trust money in a trust account under section 71 of the Act must retain the money in that account until it is paid –

(a) to the person entitled to it; or

(b) to that person's solicitor; or

(c) in accordance with that person's written directions.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person who –

(a) ceases to be authorized to carry on the business of a principal auctioneer or real estate agent; but

(b) holds any trust money in a trust account under section 71 of the Act –

must immediately disburse that money in accordance with subregulation (1) .

Penalty:  Fine not exceeding 50 penalty units.

PART 4 - Audit and supervision

Division 1 - Audit

30.   Interpretation of Division

In this Division, unless the contrary intention appears –

prescribed period, in relation to a person who has ceased to carry on the business of a principal auctioneer or real estate agent in any year, whether by reason of the death of that person or the surrender, revocation or suspension of the person's licence, means the period from the end of the previous year to and including the day on which that person ceased to carry on that business;

year means a period of 12 months ending on 30 June in any year.

31.   Trust accounts, &c., to be audited

(1)  A principal auctioneer or real estate agent must, within 3 months after the end of each year, cause an audit to be made by an approved auditor of the trust accounts and accounting records kept by that auctioneer or agent in respect of that year.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person who has ceased to carry on the business of a principal auctioneer or real estate agent must, within 3 months after the day on which that person ceased to carry on that business, cause an audit to be made by an approved auditor of the trust accounts and accounting records kept by that person in respect of the prescribed period.

Penalty:  Fine not exceeding 50 penalty units.

(3)  If a natural person who has been carrying on the business of a principal auctioneer or real estate agent dies, that person's personal representative must, within 3 months after the day on which that person died or within such further period as the Council may allow, cause an audit to be made by an approved auditor of the trust accounts and accounting records kept by that person in respect of the prescribed period.

Penalty:  Fine not exceeding 50 penalty units.

(4)  The Council may, at any time at its own expense, cause the trust accounts and accounting records of –

(a) a principal auctioneer or real estate agent; or

(b) a person who has ceased to carry on the business of a principal auctioneer's or real estate agent's licence –

to be audited by an approved auditor.

32.   Exemptions

(1)  A principal auctioneer or real estate agent who does not receive or hold trust money in a particular year is to be taken to have complied with regulation 31(1) in respect of that year if that auctioneer or agent gives the Council a declaration to that effect within 3 months after the end of that year.

(2)  A person who has ceased to carry on the business of a principal auctioneer or real estate agent and who did not receive or hold any trust money in the prescribed period is to be taken to have complied with regulation 31(2) if that person gives the Council a declaration to that effect within 3 months after the end of that period.

(3)  If a principal auctioneer or real estate agent who has died did not receive or hold any trust money in the prescribed period, that auctioneer's or agent's personal representative is to be taken to have complied with regulation 31(3) if he or she gives the Council a declaration to that effect within 3 months after the day on which that auctioneer or agent died or within such further period as the Council may allow.

(4)  Where any trust accounts and accounting records are kept by licensees who carry on business in partnership in accordance with section 29(2) of the Act, an audit of those accounts and accounting records under regulation 31 and the certificates and reports of the audit operate in respect of those accounts and accounting records as an audit certificate and report in relation to each licensee who is a partner in that partnership.

33.   Conduct of audits

(1)  A person who –

(a) appoints an auditor to carry out an audit of that person's trust accounts and accounting records under regulation 31(1) , (2) or (3) ; or

(b) is subject to an audit by an auditor appointed by the Council under regulation 31(4)  –

must, at all reasonable times –

(c) allow, or arrange to allow, the auditor access to the person's records or, in a case to which regulation 31(3) refers, to the records of the deceased auctioneer or agent; and

(d) allow the auditor to make notes of, take extracts from and take copies of any such record; and

(e) provide any information and give any explanation sought by the auditor for the purpose of the audit; and

(f) afford the auditor such other reasonable assistance as the auditor requires for the purposes of the audit.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person must not –

(a) wilfully obstruct, hinder or delay an auditor; or

(b) threaten or attempt to intimidate an auditor; or

(c) give, agree to give or offer an auditor any gift, reward or other inducement to do or abstain from doing anything in relation to an audit; or

(d) knowingly give any false or misleading information or document to an auditor; or

(e) fail to comply with a reasonable requirement of an auditor when it is in the person's power to comply with the requirement; or

(f) conceal any information or record in relation to an audit.

Penalty:  Fine not exceeding 50 penalty units.

34.   Time for completion of audits

An auditor who is appointed to carry out an audit under regulation 31 must take all reasonable steps to complete the audit within –

(a) in the case of an audit for a person who is carrying on the business of a principal auctioneer or real estate agent – 3 months after the end of the year in respect of which the audit is carried out; or

(b) in the case of an audit for a person who has ceased to carry on the business of a principal auctioneer or real estate agent – 3 months after the end of the prescribed period; or

(c) in the case of an audit for the Council – the time specified by the Council for its completion.

35.   Audit report

(1)  An auditor who is appointed by a person to carry out an audit under regulation 31(1) , (2) or (3) must, as soon as practicable after the audit is completed, give that person –

(a) the audit report; and

(b) a copy of the audit report certified by the auditor to be a true copy of the audit report.

(2)  The audit report is to be in a form approved by the Council and is to state whether, in the opinion of the auditor –

(a) the accounting records in relation to the relevant year or prescribed period, as the case may be, were properly drawn up and kept in accordance with the Act and so as to give a true and fair view of the matters to which they relate; and

(b) there is any defect or irregularity in the accounting records; and

(c) the reconciled balance of each trust account was sufficient to meet all trust account liabilities at the end of the relevant year or prescribed period, as the case may be; and

(d) the auditor obtained all the information, documents, explanations and assistance that he or she required; and

(e) the requirements of the Act in respect of trust money and the keeping of trust accounts have been complied with or have been only substantially complied with.

(3)  If the auditor finds that the requirements of the Act in respect of trust money and the keeping of trust accounts have been only substantially complied with, the auditor must specify in the audit report the matters in respect of which only substantial compliance has been achieved.

(4)  If an auditor, in the course of auditing a principal auctioneer's or real estate agent's trust accounts and accounting records, discovers –

(a) that those trust accounts and accounting records have not been kept in such a manner as to enable them to be properly audited; or

(b) any matter that appears to the auditor to involve dishonesty or a breach of the law; or

(c) any loss or deficiency of trust money; or

(d) any failure to pay or account for trust money; or

(e) any failure to comply with the provisions of the Act relating to the keeping of trust accounts –

the auditor must –

(f) as soon as practicable – give the Council a report specifying the facts so discovered and give a signed copy of the report to the principal auctioneer or real estate agent; and

(g) specify the facts so discovered in the audit report.

36.   Audit report to be given to Council

A person who appoints an auditor to carry out an audit under regulation 31(1) , (2) or (3) must give the audit report to the Council within 7 days after the day on which it is received from the auditor.

Penalty:  Fine not exceeding 20 penalty units.

37.   Fees and expenses of auditor

The reasonable fees and expenses of an auditor appointed by a person to carry out an audit under regulation 31(1) , (2) or (3) are payable by that person.

Division 2 - Inspection and production of records

38.   Inspection of records

(1)  In this regulation,

authorized person means –

(a) a member of the Council; or

(b) a person authorized by the Council under subregulation (2) .

(2)  The Council may authorize persons to inspect records in accordance with this regulation.

(3)  For the purposes of ascertaining whether the provisions of the Act are being, or have been, complied with by a person who carries on the business of an auctioneer or real estate agent, an authorized person may at any reasonable time enter that auctioneer's or agent's business premises and do any or all of the following:

(a) require the person apparently in charge of those premises to produce for inspection any record held at those premises;

(b) inspect and take notes of or extracts from any such record;

(c) make, at the Council's expense, a copy of any such record;

(d) ask questions of, and seek explanations from, the person apparently in charge of those premises in respect of any such record;

(e) if any record believed by the authorized person to be held on those business premises is not at those premises – require the person apparently in charge of those premises to give an explanation as to the whereabouts of that record.

(4)  If, under subregulation (3) , an authorized person requires the production of a record that is not in writing, is not written in the English language or is not decipherable on sight, the requirement to produce the record for inspection is to be taken to be a requirement to produce, in addition to the record if it is in writing, or instead of the record if it is not in writing, a document, written in the English language and decipherable on sight, containing the whole of the information in the record.

(5)  A person must not –

(a) wilfully obstruct, hinder or delay an authorized person in the exercise of any power under this regulation; or

(b) threaten or attempt to intimidate an authorized person; or

(c) give, agree to give or offer an authorized person any gift, reward or other inducement to do or abstain from doing anything in relation to an inspection under this regulation; or

(d) knowingly give any false or misleading information or record to an authorized person; or

(e) fail to comply with a reasonable requirement of an authorized person when it is in the person's power to comply with the requirement; or

(f) conceal any record in relation to an inspection by an authorized person.

Penalty:  Fine not exceeding 50 penalty units.

39.   Production of records

(1)  For the purpose of ascertaining whether the provisions of the Act are being, or have been, complied with by a person who carries on, or has formerly carried on, the business of an auctioneer or real estate agent, the Council may, by instrument in writing, require –

(a) that person; or

(b) any person who holds any records acquired from, or held on behalf of, that person –

to produce specified records, or records of a specified class or description, to a specified person at a specified place at a specified time or within a specified period.

(2)  The Council may, at its own expense, inspect and take notes, copies and extracts of or from any record produced under this regulation.

(3)  If, under subregulation (1) , the Council requires production of a record that is not in writing, is not written in the English language or is not decipherable on sight, the requirement to produce the record is to be taken to be a requirement to produce, in addition to the record if it is in writing, or instead of the record if it is not in writing, a document, written in the English language and decipherable on sight, containing the whole of the information in the record.

(4)  A person must not wilfully refuse or fail to produce any record in accordance with a requirement made of the person under subregulation (1) .

Penalty:  Fine not exceeding 50 penalty units.

PART 5 - Auctioneers and real estate agents trust

40.   Trust seal

(1)  The Trust's seal is to be held by the secretary of the Trust.

(2)  The seal is not to be imprinted on a document except pursuant to a resolution of the Trust, and the execution of a document so sealed is to be attested by 2 members of the Trust who were present at the meeting of the Trust at which the resolution was passed.

41.   Trust accounts and reports

(1)  The Trust must –

(a) keep a cash book or similar record, called a "deposits and withdrawals cash book", recording particulars of the deposits and withdrawals made by principal auctioneers and real estate agents in respect of their designated trust deposit accounts; and

(b) keep a ledger, called a "trust deposit accounts ledger", with each auctioneer's and agent's designated trust deposit account, recording each deposit and withdrawal and a closing balance; and

(c) at least once in each month – cause an account or statement to be prepared reconciling the deposits and withdrawals cash book with the amounts held in trust deposit accounts; and

(d) at least once in each month – cause an account or statement to be prepared reconciling the total of the balances of the trust deposit accounts shown in the trust deposit accounts ledger, with the amounts held at each bank, each reconciliation being kept as part of the trust deposit account records of the Trust.

(2)  The Trust must –

(a) prepare financial statements of all its transactions for each year ending 31 December and have those statements audited by an approved auditor within the period of 3 months after the end of that year; and

(b) have the deposits and withdrawals cash book, trust deposit accounts ledger and associated reconciliations audited by an approved auditor at random at least 2 additional times in each year ending 31 December.

(3)  The auditor must –

(a) report to the Trust within one month after completing the annual audit, whether in his or her opinion the requirements of the Act in respect of the handling of money by the Trust have been complied with, or have been only substantially complied with; and

(b) if the auditor finds that the requirements of the Act in respect of the handling of money by the Trust have been only substantially complied with – specify in the report the matters in respect of which only substantial compliance has been achieved.

(4)  The Trust must give a copy of the auditor's annual audit report to –

(a) the Council; and

(b) the Minister –

within 7 days after the day on which it is received by the Trust.

PART 6 - Miscellaneous

42.   Council seal

(1)  The Council's seal is to be held by the secretary.

(2)  The seal is not to be imprinted on a document except pursuant to a resolution of the Council, and the execution of a document so sealed is to be attested by –

(a) 2 members who were present at the meeting of the Council at which the resolution was passed; and

(b) the President or secretary.

43.   Educational qualifications of licensees

For the purposes of sections 35(1)(a)(i) and 36(a)(i) of the Act, the prescribed educational qualifications are –

(a) an Associate Diploma in Business (Real Estate) awarded by a College of Technical and Further Education; or

(b) such other educational qualification as the Council, by resolution, determines is of a standard at least equivalent to the Diploma specified in paragraph (a) .

44.   Examinations

An examination under section 30 , 31 , 32 , 33 , 35 , 36 or 37 of the Act is to be –

(a) in such form; and

(b) conducted in such manner; and

(c) held at such time and place –

as the Council determines.

45.   Franchising agreements

(1)  For the purposes of section 65(2) of the Act, a real estate agent must advise the Council in writing of –

(a) the name and address of the person granting the franchise and the franchisee; and

(b) the date on which the franchising agreement was entered into.

(2)  A real estate agent who has been carrying on a real estate business pursuant to a franchising agreement that has been cancelled or otherwise determined must give the Council written notice of the cancellation or determination within 14 days.

46.   Auction notices

A notice under section 16 of the Act is to be in accordance with Form 1 .

47.   Notice of rates of commission

(1)  In this regulation,

prescribed notice means a notice that clearly sets out the rates of commission and other charges relating to the services provided by principal auctioneers and real estate agents, as recommended by the Real Estate Institute of Tasmania and published by the Institute from time to time in newspapers published and circulated generally in the State.

(2)  A real estate agent must cause a prescribed notice to be exhibited at each of the agent's business premises.

(3)  For the purposes of subregulation (2) the prescribed notice is to be exhibited in a conspicuous position where it may be easily read by visitors to the business premises.

48.   Rules of conduct for managers

(1)  In this regulation,

licensee means a real estate agent, real estate manager or real estate sales consultant.

(2)  The following rules of conduct are prescribed as the rules of conduct to be observed by a licensee who is engaged by a real estate agent to manage business premises:

(a) the licensee must be responsible for the management of those premises to the exclusion of all other persons other than the real estate agent by whom the licensee was engaged;

(b) the licensee must give substantial attendance at those premises during normal business hours;

(c) the licensee must ensure that the business and accounting records required to be kept at, or in respect of the business transacted from, those premises are kept in accordance with the Act;

(d) the licensee must not manage, or interfere with the management of, any other business premises of the real estate agent by whom the licensee was engaged;

(e) the licensee must honestly account to the real estate agent by whom the licensee was engaged for all money received at those premises in the course of business;

(f) the licensee must diligently supervise the work of any other persons engaged to work at those premises;

(g) the licensee must ensure that any other persons engaged to work at those premises understand and comply with the provisions of the Act.

(3)  For the purposes of ascertaining whether the rule of conduct specified in subregulation (2)(b) is being complied with by a licensee, the Council may require the licensee to advise the Council in writing of the licensee's hours of attendance at the business premises during any period specified by the Council.

49.   General rules of conduct

Licensees must at all times observe the following rules of conduct:

(a) a licensee must accept as his or her first responsibility service to the client whom he or she represents and the licensee must act fairly and honestly and in a reasonable manner towards all other persons in connection with the client's business;

(b) a licensee must ascertain all available pertinent information relating to a client's business and disclose all material facts relevant to that business to the client as soon as practicable.

50.   Liability of partners

If any licensees carry on business in partnership in accordance with section 29(2) of the Act –

(a) each partner in the partnership is liable to perform the obligations imposed on licensees by these regulations; but

(b) the discharge by one partner in the partnership of his or her obligations under these regulations is a discharge by all the partners in the partnership of their obligations under these regulations.

51.   Fees

(1)  The fees specified in Schedule 2 are prescribed as the fees payable in respect of the several matters to which they respectively relate.

(2)  If a licence is granted to a person after 30 June in any year, that person is to pay only one-half of the fee prescribed for the grant of that licence.

(3)  If an application for the renewal of a licence is received by the Council after 31 October in any year, the applicant must pay a late fee of $25 in addition to the fee prescribed for the renewal of that licence.

SCHEDULE 1 - Forms

Regulation 46

Form 1 - Auction Notice

SCHEDULE 2 - Fees

Regulation 51

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 8 April 1992

These regulations are administered in the Department of Justice.