Consumer Acts Amendment Bill 2011 - ocpc.vic.gov.auFILE/571052bab1.docx · Web viewOCPC-VIC, Word 2007, Template Release 2010 V5.01

Consumer Acts Amendment Bill 2011

TABLE OF PROVISIONSClause Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 2

PART 2—ESTATE AGENTS ACT 1980 3

3 Definitions 34 Section 55 substituted and new section 55A inserted 3

55 Restriction on agent purchasing property 355A Prohibition on charging or retaining of commission 7

PART 3—OWNERS CORPORATIONS ACT 2006 8

5 Section 11 substituted 811 Management of owners corporation and power to

delegate 86 Audit of accounts of owners corporations 97 Proxies 98 Section 101 substituted 10

101 Functions and powers of committee 109 Address of absent owners 1010 New section 138A inserted 11

138A Power to make rules regarding proxies 1111 Who may apply to VCAT in relation to a dispute? 1112 What orders can VCAT make? 1113 Heading to section 205 amended and Schedule 2 amended 1214 Statute law revision 12

PART 4—FAIR TRADING ACT 1999 13

15 Functions and powers of the Director 1316 Conduct by officers, employees or agents 1317 Defences 1518 Section 160F substituted 16

160F Jurisdiction of courts and the Tribunal 16

PARLIAMENT OF VICTORIA

571052B.AB-1/7/2011 BILL LA AMENDED 1/7/20111

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PART 5—CONVEYANCERS ACT 2006 17

19 What is conveyancing work? 1720 Approval of auditors 1721 Review of exclusion for sale of businesses 17

PART 6—CONSUMER AFFAIRS LEGISLATION AMENDMENT (REFORM) ACT 2010 18

22 Commencement 1823 Amendments to New Part 2D to be inserted into Fair Trading

Act 1999 1824 Heading to section 4 amended 1925 Section 4 amended 19

21A Transitional provision for Part 2D 2026 Owners Corporations Act 2006 2027 Statute law revision 20

PART 7—AMENDMENT OF CERTAIN COMMENCEMENT ARRANGEMENTS 21

28 Associations Incorporation Amendment Act 2009 2129 Associations Incorporation Amendment Act 2010 2130 Personal Property Securities (Statute Law Revision and

Implementation) Act 2010 21

PART 8—REPEALS AND CONSEQUENTIAL AND OTHER AMENDMENTS 22

Division 1—Repeal of Companies (Administration) Act 1981 22

31 Repeal of Companies (Administration) Act 1981 22

Division 2—Consequential amendments for repeal of Companies (Administration) Act 1981 22

32 Anglican Church of Australia Constitution Act 1960 2233 Associations Incorporation Act 1981 2234 Health Services Act 1988 22

Division 3—Amendments of other Acts 23

35 Consumer Affairs Legislation Amendment Act 2010 2336 Evidence (Miscellaneous Provisions) Act 1958 2337 Legal Profession Act 2004 2338 Residential Tenancies Amendment Act 2010 2339 Retail Leases Act 2003 24

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Division 4—Repeal of amending Act 24

40 Repeal of amending Act 24═══════════════

ENDNOTES 25

A Bill for an Act to amend the Estate Agents Act 1980, the Owners Corporations Act 2006, the Fair Trading Act 1999, the

Conveyancers Act 2006, the Consumer Affairs Legislation Amendment (Reform) Act 2010, to repeal the Companies

(Administration) Act 1981 and to make minor or consequential amendments to several other Acts and for other purposes.

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are—

(a) to amend the Estate Agents Act 1980 in relation to estate agents purchasing real estate or businesses;

(b) to amend the Owners Corporations Act 2006 in relation to delegations, proxies and service of notices;

(c) to amend the Fair Trading Act 1999—

Introduced in the AssemblyAmended in the Assembly on 30 June 2011



PARLIAMENT OF VICTORIA

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(i) in relation to conduct by officers, employees and agents of a body corporate;

(ii) to clarify the jurisdiction of the courts and VCAT in relation to matters under the Australian Consumer Law (Victoria);

(d) to amend the Conveyancers Act 2006 to remove a restriction on work involving the sale of businesses;

(e) to amend the Consumer Affairs Legislation Amendment (Reform) Act 2010 in relation to the disposal of uncollected goods;

(f) to amend the commencement arrangements in the Associations Incorporation Amendment Act 2009, the Associations Incorporation Amendment Act 2010, the Personal Property Securities (Statute Law Revision and Implementation) Act 2010 and the Consumer Affairs Legislation Amendment (Reform) Act 2010;

(g) to repeal the Companies (Administration) Act 1981.

2 Commencement

(1) This Act (except sections 19, 27 and 35(3)) comes into operation on the day after the day on which it receives the Royal Assent.

(2) Section 19 comes into operation on 1 July 2012.

(3) Sections 27 and 35(3) are taken to have come into operation on 31 October 2010.

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s. 2 Clause Page


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PART 2—ESTATE AGENTS ACT 1980

3 Definitionss. 3

See:Act No.9428.Reprint No. 11as at1 April 2011 and amending Act No. 63/2010.LawToday:www.legislation.vic.gov.au

In section 4(1) of the Estate Agents Act 1980, in paragraph (a) of the definition of approved auditor, for "National Institute of Accountants" substitute "Institute of Public Accountants".

4 Section 55 substituted and new section 55A inserted

For section 55 of the Estate Agents Act 1980 substitute—

"55 Restriction on agent purchasing property

(1) An estate agent must not obtain a beneficial interest in any real estate or business that the estate agent has been commissioned by any principal to sell.

Penalty: 240 penalty units or imprisonment for 2 years, or both.

(2) An agent's representative employed by an estate agent must not obtain a beneficial interest in any real estate or business that the estate agent has been commissioned by any principal to sell.

Part 8—Repeals and Consequential and Other Amendments



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Penalty: 240 penalty units or imprisonment for 2 years, or both.

(3) Without limiting subsections (1) or (2), a person obtains a beneficial interest if any of the following circumstances arise—

(a) the person or an associate of the person—

(i) purchases the real estate or business; or

(ii) holds an option to purchase the real estate or business;

(b) a proprietary corporation of which the person or an associate of the person is a member—



(c) a corporation over which the person (either individually or jointly with associates) or an associate of the person can exercise control—



(d) a corporation of which the person or an associate of the person is an executive officer—


s. 4Part 8—Repeals and Consequential and Other Amendments



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(e) if the person is a corporation, an executive officer of that corporation or an associate of the executive officer—



(f) the trustee of a discretionary trust of which the person or an associate of the person is a beneficiary purchases, or obtains a beneficial interest in, the real estate or business;

(g) a member of a firm or partnership of which the person or an associate of the person is also a member purchases the real estate or business;

(h) in the case of real estate—

(i) the person or an associate of the person has, directly or indirectly, a right to participate in the income or profits of a business carried on for profit or gain; and

(ii) another person carrying on that business obtains a beneficial interest in the real estate;

(i) in the case of a business (Business 1)—

(i) the person or an associate of the person has, directly or indirectly, a right to participate in the income or profits of another business (Business 2) carried on for profit or gain; and




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(ii) another person carrying on Business 2 obtains a beneficial interest in Business 1.

(4) A person does not contravene subsection (1) or (2) if—

(a) the person—

(i) before a contract for the sale of the real estate or business is entered into, obtains the principal's written acknowledgment in the form approved by the Director that the principal—

(A) is aware that the person is interested in obtaining a beneficial interest in the real estate or business; and

(B) consents to the person obtaining the interest; and

(ii) acts fairly and honestly in relation to the transaction; and

(b) no commission or other reward is payable in relation to the transaction; and

(c) the principal is in substantially as good a position as the principal would be if the real estate or business were sold at fair market value.

(5) In this section—

associate means—




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(a) an employee of the estate agent; or

(b) a spouse, domestic partner, parent, brother, sister or child of the estate agent or agent's representative; or

(c) a child of the spouse or domestic partner of the estate agent or agent's representative;

control has the meaning given by section 50AA of the Corporations Act;

executive officer means any person, howsoever described and whether or not the person is a director of the corporation, who is concerned, or takes part, in the management of the corporation;

obtain includes being in any way concerned in obtaining.

55A Prohibition on charging or retaining of commission

(1) This section applies if an estate agent is found guilty of an offence against section 55(1) in relation to the sale of real estate or a business that the estate agent is commissioned by a principal to sell.

(2) The estate agent must not charge commission to, and must repay commission paid by, the principal in respect of the sale of that real estate or business.".

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PART 3—OWNERS CORPORATIONS ACT 2006

5 Section 11 substituteds. 5

See:Act No.69/2006and amendingAct Nos2/2008, 1/2010, 63/2010 and 72/2010.LawToday:www.legislation.vic.gov.au

For section 11 of the Owners Corporations Act 2006 substitute—

"11 Management of owners corporation and power to delegate

(1) An owners corporation is to be managed by or under the direction of the lot owners.

(2) Subject to subsection (3), an owners corporation may, by instrument or by resolution at a general meeting, delegate any power or function of the owners corporation to—

(a) the committee of the owners corporation;

(b) the manager of the owners corporation;

(c) a lot owner;

(d) the chairperson of the owners corporation;

(e) the secretary of the owners corporation;

(f) an employee of the owners corporation.

(3) An owners corporation must not delegate any of the following powers or functions under subsection (2)—




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(a) a power or function that requires a unanimous resolution, a special resolution or a resolution at a general meeting;

(b) the power of delegation under that subsection.

Note

See section 82.

(4) A resolution under subsection (2) is only effective if it is recorded in the minutes of the general meeting.

(5) If no delegation is in force under subsection (2)(a), the committee of the owners corporation is delegated all powers and functions that may be exercised by the owners corporation, except for—

(a) those powers and functions set out in subsection (3); and

(b) those matters which must be determined at a general meeting under section 82.

(6) Subsection (1) does not give rise to any fiduciary duties or directors' duties on the part of lot owners.Note

See section 5 for duties of an owners corporation.".

6 Audit of accounts of owners corporations

In section 35(1)(c) and (2)(c) of the Owners Corporations Act 2006, for "National Institute of Accountants" substitute "Institute of Public Accountants".

7 Proxies

After section 87(1) of the Owners Corporations Act 2006 insert—




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"Note

See section 138A.".

8 Section 101 substituted

For section 101 of the Owners Corporations Act 2006 substitute—

"101 Functions and powers of committee

Subject to the rules of the owners corporation, a committee has all the powers and functions that are delegated to it by or under section 11.

Note

Powers and functions that require a unanimous resolution, a special resolution or a resolution at a general meeting of the owners corporation cannot be delegated under section 11.".

9 Address of absent owners

(1) In section 135 of the Owners Corporations Act 2006, after "address" insert "in Australia".

(2) At the end of section 135 of the Owners Corporations Act 2006 insert—

"(2) If an address in Australia has not been nominated under subsection (1), service may be effected—

(a) by posting the notice to the last known address of the lot owner in Australia; or

(b) if an address under paragraph (a) is not known or if a notice sent to that address is returned, in any other manner VCAT considers appropriate.




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Note

See section 148. See also section 113(2) of the Transfer of Land Act 1958.".

10 New section 138A inserted

After section 138 of the Owners Corporations Act 2006 insert—

"138A Power to make rules regarding proxies

(1) Subject to subsection (2), an owners corporation may make a rule requiring that a majority of the members of the committee of the owners corporation consent to a proxy of a member (authorised under section 87) voting at committee meetings.

(2) A rule made under subsection (1) only applies if the proxy-holder has not been elected or co-opted as a member of the committee.

(3) If a rule under subsection (1) is in effect, the consent must not be unreasonably withheld.".

11 Who may apply to VCAT in relation to a dispute?

After section 163(1) of the Owners Corporations Act 2006 insert—

"(1A) A lot owner may apply to VCAT on behalf of an owners corporation to resolve an owners corporation dispute.Note




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This subsection clarifies that the rule in Foss v Harbottle (1843) 67 ER 189 does not apply to owners corporation disputes.".

12 What orders can VCAT make?

After section 165(1)(b) of the Owners Corporations Act 2006 insert—

"(ba) an order authorising a lot owner to institute, prosecute, defend or discontinue specified proceedings on behalf of the owners corporation;".

13 Heading to section 205 amended and Schedule 2 amended

(1) In the heading to section 205 of the Owners Corporations Act 2006, after "Transitional" insert "and savings".

(2) In the heading to Schedule 2 to the Owners Corporations Act 2006, after "TRANSITIONAL" insert "AND SAVINGS".

(3) After clause 11 of Schedule 2 to the Owners Corporations Act 2006 insert—

"12 Saving of certain delegations

A delegation under section 11 is not invalid merely because of the commencement of section 5 of the Consumer Acts Amendment Act 2011.".

14 Statute law revision

In section 6(a)(ii) of the Owners Corporations Act 2006, for "that Act;" substitute "that Act; or".

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PART 4—FAIR TRADING ACT 1999

15 Functions and powers of the Directors. 15

See:Act No.16/1999.Reprint No. 5as at1 January 2011and amendingAct Nos1/2010, 63/2010 and 67/2010.LawToday:www.legislation.vic.gov.au

After section 100(1)(i) of the Fair Trading Act 1999 insert—

"(ia) any power that, before the repeal of the Companies (Administration) Act 1981, could be exercised by the Commissioner for Corporate Affairs under that or any other Act, including the power to commence proceedings under section 10 of that Act;".

16 Conduct by officers, employees or agents

For section 144(1), (2), (3) and (4) of the Fair Trading Act 1999 substitute—

"(1) If, in a proceeding under this Act in respect of conduct that is engaged in by a body corporate and to which this Act applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show—

(a) that an officer, employee or agent of the body corporate engaged in that conduct within the scope of the actual or




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apparent authority of the officer, employee or agent; and

(b) that the officer, employee or agent had that state of mind.

(2) The following conduct engaged in on behalf of a body corporate is also taken, for the purposes of this Act, to have been engaged in by the body corporate—

(a) conduct by an officer, employee or agent of the body corporate within the scope of the actual or apparent authority of the officer, employee or agent; or

(b) conduct by any other person—

(i) at the direction of an officer, employee or agent of the body corporate; or

(ii) with the consent or agreement (whether express or implied) of such an officer, employee or agent—

if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, employee or agent.

(3) If, in a proceeding under this Act in respect of conduct that is engaged in by a person (the principal) other than a body corporate and to which this Act applies, it is necessary to establish the state of mind of the principal, it is sufficient to show—

(a) that an employee or agent of the principal engaged in that conduct within the scope of the actual or




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apparent authority or the employee or agent; and

(b) that the employee or agent had that state of mind.

(4) The following conduct engaged in on behalf of a person (the principal) other than a body corporate is also taken, for the purposes of this Act, to have been engaged in by the principal—

(a) conduct by an employee or agent of the principal within the scope of the actual or apparent authority of the employee or agent; or

(b) conduct by any other person—

(i) at the direction of an employee or agent of the principal; or

(ii) with the consent or agreement (whether express or implied) of such an employee or agent—

if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent.

(4A) If—

(a) a person other than a body corporate is convicted of an offence; and

(b) subsection (3) or (4) applied in relation to the conviction on the basis that the person was the principal mentioned in that subsection; and

(c) the person would not have been convicted of the offence if that subsection had not been enacted—




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the person is not liable to be punished by imprisonment for that offence.".

17 Defences

In section 155(2)(b) of the Fair Trading Act 1999, for "or an" substitute ", employee or".

18 Section 160F substituted

For section 160F of the Fair Trading Act 1999 substitute—

"160F Jurisdiction of courts and the Tribunal

Subject to section 160E, the Tribunal or any court of competent jurisdiction may hear and determine a cause of action arising under any provision of the Australian Consumer Law (Victoria).".

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s. 17s. 18Part 8—Repeals and Consequential and Other Amendments



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PART 5—CONVEYANCERS ACT 2006

19 What is conveyancing work?s. 19

See:Act No.75/2006.Reprint No. 1as at1 April 2011 and amending Act No. 63/2010.LawToday:www.legislation.vic.gov.au

(1) After section 4(2) of the Conveyancers Act 2006 insert—

"(2A) In this Act, conveyancing work also means legal work connected with the sale of a business, including the sale of goodwill and stock-in-trade and the transfer of any business licence.".

(2) Section 4(3)(b) of the Conveyancers Act 2006 is repealed.

20 Approval of auditors

In sections 83(1)(a)(i) and 90(2) of the Conveyancers Act 2006, for "National Institute of Accountants" substitute "Institute of Public Accountants".

21 Review of exclusion for sale of businesses

Section 189 of the Conveyancers Act 2006 is repealed.

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PART 6—CONSUMER AFFAIRS LEGISLATION AMENDMENT (REFORM) ACT 2010

22 Commencements. 22

See:Act No.63/2010 and amending Act No. 72/2010.StatuteBook:www.legislation.vic.gov.au

In section 2(4) of the Consumer Affairs Legislation Amendment (Reform) Act 2010, for "1 September 2011" substitute "30 June 2012".

23 Amendments to New Part 2D to be inserted into Fair Trading Act 1999

(1) In section 3 of the Consumer Affairs Legislation Amendment (Reform) Act 2010, in proposed section 32ZP of the Fair Trading Act 1999—

(a) in paragraph (a) of the definition of high value, for "$200" substitute "$1000";

(b) for the definition of low value substitute—

"low value, for goods, means the goods are of a value less than—

(a) in the case of a motor vehicle, $1000 or, if another value is prescribed by the regulations, that other value; or

(b) in any other case, $200 or, if another value is prescribed by the regulations, that other value;".




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(2) In section 3 of the Consumer Affairs Legislation Amendment (Reform) Act 2010, for proposed section 32ZY(3) of the Fair Trading Act 1999 substitute—

"(3) Goods must not be disposed of under this section otherwise than—

(a) by way of public auction that is either—

(i) advertised at least 7 days in advance; or

(ii) held over a period of at least 7 days; or

(b) subject to subsection (4), by way of private sale.

(4) Goods may only be disposed of under subsection (3)(b) if—

(a) notice has been given in accordance with subsection (1); and

(b) the receiver has a reasonable belief that the best price could only be achieved by private sale; and

(c) the receiver takes reasonable care to ensure that the goods are sold for the best price that can reasonably be obtained, having regard to the circumstances at the time the goods are sold.".

24 Heading to section 4 amended

In the heading to section 4 of the Consumer Affairs Legislation Amendment (Reform) Act




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2010, for "clause 21" substitute "clauses 21 and 21A".

25 Section 4 amended

In section 4 of the Consumer Affairs Legislation Amendment (Reform) Act 2010, after proposed clause 21 of Schedule 3 to the Fair Trading Act 1999 insert—

"21A Transitional provision for Part 2D

(1) For the purposes of section 32ZZ, a certificate issued under section 24 of the Chattel Securities Act 1987 is taken to be a written search result under section 170(2)(b) of the Personal Property Securities Act 2009 of the Commonwealth.

(2) Subclause (1) expires on the commencement of section 5 of the Personal Property Securities (Statute Law Revision and Implementation) Act 2010.".

26 Owners Corporations Act 2006

Section 77 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 is repealed.

27 Statute law revision

In section 16(1) of the Consumer Affairs Legislation Amendment (Reform) Act 2010 for "Insert the following heading to Part II of the Goods Act 1958" substitute "For the heading to Part II of the Goods Act 1958 substitute".

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PART 7—AMENDMENT OF CERTAIN COMMENCEMENT ARRANGEMENTS

28 Associations Incorporation Amendment Act 2009

In section 2(4) of the Associations Incorporation Amendment Act 2009, for "1 December 2011" substitute "1 July 2012".

29 Associations Incorporation Amendment Act 2010

In section 2(2) of the Associations Incorporation Amendment Act 2010, for "1 December 2011" substitute "1 July 2012".

30 Personal Property Securities (Statute Law Revision and Implementation) Act 2010

In section 2 of the Personal Property Securities (Statute Law Revision and Implementation) Act 2010—

(a) in subsection (2), for "Subject to subsection (3), the" substitute "The";

(b) subsection (3) is repealed.

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See:Act No.12/2009and amendingAct No.46/2010.StatuteBook:www.legislation.vic.gov.au

s. 28

See:Act No.46/2010.StatuteBook:www.legislation.vic.gov.au

See:Act No.74/2010.LawToday:www.legislation.vic.gov.au




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PART 8—REPEALS AND CONSEQUENTIAL AND OTHER AMENDMENTS

Division 1—Repeal of Companies (Administration) Act 1981

31 Repeal of Companies (Administration) Act 1981

The Companies (Administration) Act 1981 is repealed.

Division 2—Consequential amendments for repeal of Companies (Administration) Act 1981

32 Anglican Church of Australia Constitution Act 1960

In section 7 of the Anglican Church of Australia Constitution Act 1960, for "shall be deposited with the Commissioner for Corporate Affairs of the State of Victoria. Every such copy and statement shall be certified to by the Primate or the person for the time being exercising the authority of the Primate under the Constitution and every copy and statement so certified and registered" substitute "may be certified by the Primate or the person for the time being exercising the authority of the Primate under the Constitution and every copy and statement so certified".

33 Associations Incorporation Act 1981

In section 11(1)(b) of the Associations Incorporation Act 1981 omit "Commissioner for Corporate Affairs,".

34 Health Services Act 1988

In section 62(3) and (4)(b)(ii) of the Health Services Act 1988, for "the Commissioner for Corporate Affairs" substitute "ASIC within the meaning of the ASIC Act".




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Division 3—Amendments of other Acts

35 Consumer Affairs Legislation Amendment Act 2010

(1) Section 33 of the Consumer Affairs Legislation Amendment Act 2010 is repealed.

(2) In section 73(2)(c) of the Consumer Affairs Legislation Amendment Act 2010, after proposed section 89A(4)(i) of the Sex Work Act 1994 insert—

"(ia) subsection (3)(ia) is 1 penalty unit;".

(3) In item 7 of the Schedule to the Consumer Affairs Legislation Amendment Act 2010, for "Insert the following heading to Part 2" substitute "For the heading to Part 2 substitute".

36 Evidence (Miscellaneous Provisions) Act 1958

In section 107A(1)(v) of the Evidence (Miscellaneous Provisions) Act 1958, for "National Institute of Accountants" substitute "Institute of Public Accountants".

37 Legal Profession Act 2004

In sections 3.3.49(2)(g), 3.3.51(1)(a) and 3.3.58(2) of the Legal Profession Act 2004, for "National Institute of Accountants" substitute "Institute of Public Accountants".

38 Residential Tenancies Amendment Act 2010

(1) In section 39(3) of the Residential Tenancies Amendment Act 2010—

(a) omit "(1) and (2)(a)";

(b) before "substitute" insert "(where three times occurring)".




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(2) In section 81(f)(i) of the Residential Tenancies Amendment Act 2010, for 'after "rooming house," insert "building," ' substitute 'for "rooming house or" substitute "rooming house, building," '.

(3) In section 170 of the Residential Tenancies Amendment Act 2010, for '"(bb)' substitute "(bb)".

39 Retail Leases Act 2003

In section 3 of the Retail Leases Act 2003, for paragraph (c) of the definition of accountant substitute—

"(c) the Institute of Public Accountants;".

Division 4—Repeal of amending Act

40 Repeal of amending Act

This Act is repealed on 1 July 2013.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

By Authority. Government Printer for the State of Victoria.

Endnotes



Documents

Consumer Acts Amendment Bill 2011 - ocpc.vic.gov.auFILE/571052bab1.docx · Web viewOCPC-VIC, Word 2007, Template Release 2010 V5.01