Disqualified persons

A person is disqualified under the Property, Stock and Business Agents Act 2002 and not eligible for a licence or certificate of registration if that person:

(a) has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Commissioner for Fair Trading has determined that the offence should be ignored, or

(b) has a conviction that was recorded in the last 5 years for an offence for licence or certificate of registration lending, unless the Commissioner has determined that the offence should be ignored, or

(c)  is an undischarged bankrupt, unless the Commissioner is satisfied that the person took all reasonable steps to avoid the bankruptcy concerned,

(d)  at any time in the last 3 years was an undischarged bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit, unless the Commissioner is satisfied that the person took all reasonable steps to avoid the bankruptcy or other financial difficulties concerned, or

(e)  is, or was at any time in the last 3 years, a director or person concerned in the management of an externally-administered body corporate (within the meaning of the Corporations Act) except in a case of the voluntary winding up of the body corporate, unless the Commissioner is satisfied that the person took all reasonable steps (while a director or person concerned in the management of the body corporate) to avoid the body corporate becoming an externally-administered body corporate.

(f)  is a person:

(i)  who at any time in the last 3 years, was a director or person concerned in the management of a body corporate that, within 12 months after the person ceasing to be such a director or person, became an externally-administered body corporate (within the meaning of the Corporations Act) except in the case of a voluntary winding up of the body corporate, and

(ii)  who failed (while a director or person concerned in the management of that body corporate) to take all reasonable steps to avoid the body corporate becoming an externally administered body corporate.

Such a person is not a disqualified person unless the Commissioner has served a notice on the person giving the person the opportunity to make oral or written submissions to the Commissioner within a period not being less than 14 days with respect to the grounds on which the person believes he or she took all reasonable steps to avoid the body corporate becoming an externally administered body corporate and the Director-General is satisfied that the person failed to take all such steps.

(g) Licensee disqualification on the grounds of being involved in the ‘management of a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed’, has been replaced with disqualification on the grounds of being involved in the ‘management of a corporation up to 12 months prior to an external administrator being appointed to it’. This removes the previous loophole of someone resigning from a corporation the day before a receiver is appointed.

A person may now be disqualified on the grounds that they have been suspended or disqualified from holding an authority under another Act administered by the Minister for Fair Trading. This is because such a suspension or disqualification is an indicator that a serious offence has been committed. The Commissioner for Fair Trading has discretionary power to overrule such a disqualification if it is not relevant.

The disqualification provisions relating to bankruptcy or involvement with a failed company no longer apply to certificate holders. This is because certificate holders work under the supervision of a licensee who has an explicit duty in relation to supervision.

(h) is a mentally incapacitated person, or

(i) is disqualified from holding a licence, certificate of registration or other authority under a corresponding law or is the holder of such a licence, certificate of registration or other authority that is suspended, or

(j) is the holder of a licence, permit or other authority that is suspended under legislation administered by the Minister for Fair Trading unless the Commissioner has determined that this should be ignored, or

(k) is in partnership with a person who is a disqualified person, or

(l) is for the time being declared to be a disqualified person under Part 12 (Complaints and disciplinary action) of the Property, Stock and Business Agents Act, or

(m) is a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed, or

(n) has failed to pay a contribution or levy payable by the person under Part 10 (Compensation Fund) of the Property, Stock and Business Agents Act and the failure continues, or

(o) has failed to pay an amount due as a debt to the Crown by way of recovery of an amount paid out of the Compensation Fund and the failure continues, or

(p) has failed to pay any monetary penalty payable by the person under Part 12 (Complaints and disciplinary action) of the Property, Stock and Business Agents Act or has failed to comply with a direction given by the Commissioner under that Part, and the failure continues, or

(q) has failed to provide the Commissioner with an auditor's report that the person is required to provide under the Property, Stock and Business Agents Act on the audit of the records and documents relating to any money held in a trust account kept by the person under the Act, unless the Commissioner determines that in the circumstances that failure should not disqualify the person, or

(r) is in breach of any provision of the Property, Stock and Business Agents Act 2002 or the regulations.