Licensees are prohibited from employing people who are disqualified from holding a licence or certificate of registration, or who have had their application for a licence or certificate refused on the basis that they are not a ‘fit and proper’ person to hold a licence.
There are several reasons why a person may be disqualified from holding a licence or certificate of registration under the Property and Stock Agents Act 2002 (the Act).
Convictions
A person is disqualified from holding a licence or certificate of registration if the person:
- has a conviction for an offence involving dishonesty that was recorded in the last 10 years, or
- has a conviction that was recorded in the last 5 years for an offence involving lending or transferring a licence or certificate of registration to another person.
The Secretary may determine that the offence can be ignored under certain circumstances.
Bankruptcy
A person may be disqualified from holding a licence if they are, or were at any time in the last three years, an undischarged bankrupt and:
- 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.
The Secretary can overturn the disqualification decision if satisfied that the person took all reasonable steps to avoid the bankruptcy or other financial difficulties concerned.
The disqualification provisions relating to bankruptcy or involvement with a failed company do not apply to certificate of registration holders. Certificate of registration holders work under the supervision of a licensee who has explicit supervision responsibilities which are set out in the Supervision Guidelines.
Corporations
A corporation may be disqualified from holding a licence if:
- it is subject to a winding up order, or
- has been appointed a controller or administrator.
A person may be disqualified from holding a licence if, in the last three years:
- the person was a director or person concerned with the management of a body corporate (within the meaning of the Corporations Act 2001 (Cth)) that became an externally administered body corporate within 12 months after the person ceased to be such a person or director, and
- the person failed to take all reasonable steps to avoid the body corporate entering into external administration.
The Secretary will serve a notice, giving the person the opportunity to make a submission about the grounds on which they believe they took all reasonable steps, within a period not less than 14 days.
The above does not apply in cases where the winding up of the corporation is voluntary.
Other instances
A person may also be disqualified if they have been suspended or disqualified from holding an authority under another Act administered by the NSW Minister for Better Regulation and Innovation. The Secretary may ignore these factors in deciding whether a person should be disqualified, if the Secretary considers it appropriate to do so.
You can download the full disqualified persons list from the Act on the NSW Legislation website.