Queenstanb ANNO TRICESIMO SEXTO ELIZABETHAE SECUNDAE REGINAE

Transcription

1 745 Queenstanb ANNO TRICESIMO SEXTO ELIZABETHAE SECUNDAE REGINAE i J, 55 af c An Act to provide f the registration of mtgage brokers, to regulate certain practices of mtgage brokers and f other purposes, [ASSENTED TO 1ST OCTOBER, 1987] B

2 746 Mtgage Brokers Act 1987, No. 55 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authity of the same, as follows:- PART I-PRELIMINARY 1. Sht title. This Act may be cited as the Mtgage Brokers Act Commencement. (1) Section 1 and this section shall commence on the day on which this Act is assented to f and on behalf of Her Majesty. (2) Except as provided in subsection (1), this Act shall commence on a day appointed by Proclamation. 3. Arrangement. This Act is arranged as follows:- PART I-PRELIMINARY (ss. 1-6); PART II-REGISTRATION OF MORTGAGE BROKERS (ss. 7-20); PART III-CONDUCT OF BUSINESS OF MORTGAGE BROKING (ss ); PART IV-MISCELLANEOUS (ss ). 4. Savings. Without limiting the operation of the Acts Interpretation Act , a person who, immediately pri to the commencement of this section, was a registered mtgage broker under the Money Lenders Act shall be a registered mtgage broker under and subject to this Act whilst his name remains in the register. 5. Interpretation. (1) In this Act, unless the contrary intention appears- "Minister" means the Minister of the Crown f the time being administering this Act and includes any Minister of the Crown who is temparily perfming the duties of the Minister; "mtgage broker" means a person who carries on holds himself out in any way as carrying on the business of mtgage broking; "mtgage broking" means procuring, negotiating arranging f the conveyance transfer of any mtgage mtgages secured on land on land and improvements thereon, whether the conveyance transfer is absolute by way of security; "register" means the Register of Mtgage Brokers required to be kept under section 7; "registered" means registered in the register under this Act; "registrar" means the Registrar of Commercial Acts, Brisbane, appointed under the Administration of Commercial Laws

3 Mtgage Brokers Act 1987, No Act : The term includes any Deputy Registrar of Commercial Acts, Brisbane appointed under that Act. (2) In this Act, unless the contrary intention appears, where a wd phrase is given a particular meaning, other parts of speech and grammatical fms of that wd phrase have cresponding meanings. 6. Business of mtgage broker. In this Part, a reference to carrying on a business of mtgage broking includes a reference to carrying on mtgage broking in the course of as part of as incidental to in connexion with the carrying on of another business. PART II-REGISTRATION OF MORTGAGE BROKERS 7. Register. (1) (a) The registrar shall keep, in such fm as he thinks fit, a register to be called the Register of Mtgage Brokers in which he shall cause to be registered the names of each person approved by him to be registered as a mtgage broker, the name under which and each address in Queensland at which the business is to be carried on and such other particulars as may be prescribed. (b) The Register of Mtgage Brokers kept under section 14B of the Money Lenders Act shall continue and shall, subject to this Act, be the register f the purposes of this Act. (2) The register shall be available f perusal by any member of the public at any reasonable time on payment of the prescribed fee. (3) The registrar may, on payment of the prescribed fee, issue a certificate, relating to any entry in the register a copy of extract from any such entry. 8. Application f registration. (1) A person who proposes to carry on the business of mtgage broking shall lodge with the registrar an application to have registered his name, the name under which and each address in Queensland at which the business is to be carried on. (2) An application- (a) shall be made in the prescribed fm and manner; (b) shall be accompanied by the prescribed fee; (c) shall contain the prescribed particulars; and (d) may set out any other matter that the applicant wishes the registrar to consider. (3) An applicant shall supply to the registrar such further infmation as the registrar may require in respect of the application. 9. Registrar's disposal of applications. (1) Upon consideration of an application, the registrar may grant the application (with without conditions as he thinks appropriate) refuse it.

4 748 Mtgage Brokers Act 1987, No. 55 (2) Befe granting an application the registrar shall enquire- (a) in the case of an application made by a natural person, into the character and financial position of the applicant; (b) in the case of an application made by a body cpate, into the financial position of the applicant and into the character of each direct of the applicant and of the secretary of the applicant, and shall satisfy himself, after consideration of the interests of the public, that the applicant is a fit and proper person to carry on the business of mtgage broking. F the purpose of enquiring into the matters referred to in this subsection the registrar may request the Commissioner of Police to furnish him with a rept on the character of the applicant, where the applicant is a body cpate, on the character of all any of the directs and the secretary of the applicant, and the Commissioner of Police, upon receipt of such request shall cause enquiries to be made and a rept to be furnished to the registrar in accdance with the request. (3) If the registrar grants an application he shall issue to the applicant a certificate in the prescribed fm. (4) If the registrar refuses an application he shall, as soon as practicable thereafter, cause written notice of such refusal and the grounds thereof to be given to the applicant. (5) Upon the refusal withdrawal of an application f registration, there shall be refunded to the applicant to any person who appears to the registrar to be entitled thereto, such part of the fee paid by the applicant under section 8 as may be prescribed. 10. Continuation of registration. Except during any period while it is suspended, registration continues in fce until it is cancelled under section 11, Annual fee and annual statement. (1) A registered person shall, befe the expiration of one month after each anniversary of the date on which his application f registration was granted- (a) pay to the registrar in respect of the year commencing on that anniversary the prescribed fee; (b) lodge with the registrar a statement in the prescribed fm signed by on behalf of that person. (2) The registrar may, on the application of a person required to comply with subsection (1) extend further extend the time f compliance with that subsection. (3) Where a person has failed to pay a fee lodge a statement pay a fee and lodge a statement in accdance with this section, the registrar shall give notice in writing to that person that unless the fee

5 Mtgage Brokers Act 1987, No is paid the statement lodged the fee is paid and the statement lodged, as the case may require, together with the prescribed late fee befe a day specified in the notice being a day that is not earlier than 14 days after the giving of the notice, the registration will be cancelled. (4) The registrar shall cancel the registration of a person who fails to pay a fee lodge a statement, both pay a fee and lodge a statement, as referred to in a notice given under subsection (3). (5) A person whose registration is cancelled pursuant to subsection (4) shall, within seven days- after the cancellation deliver his certificate of registration to the registrar. 12. Notification of change etc. (1) If, during the period of registration of a person- (a) a change occurs in the particulars specified in, in connexion with, the application f that registration; (b) a change occurs in the particulars specified in the last annual statement lodged under section 11 (1); (c) that person ceases to carry on in Queensland business as a mtgage broker, that person shall, within 14 days of the occurrence of the change cessation of business, give to the registrar notice in writing specifying particulars of the change of cessation of business and, in a case referred to in paragraph (c) a case where the change relates to particulars specified in the certificate of registration issued to that person, deliver the certificate to the registrar. (2) The registrar shall- (a) upon receipt by him of a notice referred to in paragraph (a) (b) of subsection (1), make an appropriate amendment in the register in relation to the registration to which the notification relates; (b) upon receipt by him of a notification referred to in paragraph (c) of subsection (1), cancel the registration; (c) upon receipt by him of a certificate of registration f amendment, make the appropriate amendment to the certificate and return the amended certificate to the registered person. (3) Where the registration of a person is cancelled pursuant to subsection (2), the registrar shall refund to the person fmerly registered so much of the annual fee last paid as the registrar, upon application by that person, determines as appropriate to be refunded. 13. False and misleading statements, etc. (1) A person shall not, in in relation to an application made under section 8 a statement required to be lodged under section 11 (1) a notice required to be given under section 12 (1), make a statement that is false misleading

6 750 Mtgage Brokers Act 1987, No. 55 by reason of the inclusion in the statement of any false misleading matter the omission from the statement of any material matter. Penalty: 100 penalty units. (2) It is a defence to a prosecution of a person f an offence under subsection (1) if he proves that, when the application statement was lodged, the notice given, he- (a) believed on reasonable grounds that the false matter was true; (b) believed on reasonable grounds that the misleading matter was not misleading; (c) in the case of an omission, believed on reasonable grounds that no material matter had been omitted; (d) in the case of an omission, did not know that the omitted matter was material. 14. Cancellation and suspension of registration. (1) If the registrar fms the opinion- (a) where the registered person is a natural person, that he is not a fit and proper person to continue to be so registered; (b) where the registered person is a body cpate- (i) that any direct the secretary thereof is not a fit and pi oper person to be a direct, as the case may be, the secretary of a body cpate so registered; (ii) that the affairs of the body cpate have been so conducted as to render it unfit to continue to be so registered, he may, by written notice given to the registered person, require him it to show cause to the registrar at a time and place specified in the notice why the registration should not be cancelled, at the registrar's election, suspended. Where the notice alleges a ground referred to in provision (b), a copy of the notice shall be served in a like manner on every direct and the secretary of the registered person. (2) If cause to the contrary is not shown to the registrar's satisfaction (whether at the time and place specified in the notice at a time and place to which the matter may have been adjourned transferred by the registrar) the registrar may determine to cancel at his election, to suspend f a period the registration of the person so registered, whereupon he shall by written notice notify that person of his determination in a manner prescribed by subsection (1). (3) If within 30 days after the registrar has given dispatched notice of his determination, the person whose registration is proposed

7 Mtgage Brokers Act 1987, No to be cancelled suspended has not duly instituted an appeal provided f by section 15 and duly notified the registrar of such appeal, the registrar may- (a) where the determination is to cancel a registration, cancel that person's registration; (b) where the determination is to suspend a registration, endse the registration in the register of the person concerned with particulars of the suspension, whereupon that person's registration shall be suspended f the period determined by the registrar. (4) Where a registration is cancelled suspended the person whose registration is affected shall within seven days thereafter deliver his certificate of registration to the registrar who shall, in the case of suspension, retain the certificate until the expiration of the period of suspension. (5) Nothing contained in the preceding subsections shall prevent the registrar from cancelling the registration of a person upon delivery to the registrar of that person's certificate of registration and a request to cancel the registration. 15. Appeal against registrar's determination. (1) The person aggrieved by the registrar's determination to refuse an application f registration to cancel suspend a registration to impose a condition upon a registration may appeal against the determination to a Judge of District Courts (at Brisbane at a place where the person aggrieved carries on proposes to carry on the business of mtgage broking, being a place appointed f holding such courts), who is hereby invested with jurisdiction to hear and determine the appeal and to make such der therein as to him appears just (including an der as to costs of the appeal) and whose decision shall be final and binding on the appellant and the registrar. (2) Every appeal- (a) shall be instituted within 21 days after receipt by the person aggrieved of notice of the registrar's determination by filing in the registry of the District Court at the place where the appeal is to be instituted a notice of appeal specifying the grounds of appeal and depositing in that registry the prescribed sum by way of security f costs of the appeal; (b) shall be by way of rehearing, if there exists a sufficient recd of the proceedings befe the registrar from which the appeal is brought, and otherwise shall be a hearing de novo: Provided that where an appeal is by way of rehearing either party may, by leave of the Judge, lead further evidence

8 752 Mtgage Brokers Act 1987, No. 55 in suppt of in addition to evidence given befe the registrar. (3) Within seven days after institution of an appeal the appellant shall cause to be given to the registrar a copy of the notice of appeal and to be furnished to the registrar evidence of the deposit of the prescribed security f costs of the appeal. Upon being satisfied that an appeal has been duly instituted the registrar shall cause to be furnished as soon as practicable to the registrar of the District Court at the place where the appeal is instituted a copy of all notices given by the registrar relevant to the matter of the appeal and a copy of the recd (if any) of the proceedings befe the registrar from which the appeal is brought. (4) The power to make rules of court conferred by the District Courts Act extends to making all such rules as are considered necessary convenient f regulating the procedure and practice of District Courts in relation to appeals provided f by this section. Until such rules are made in so far as the rules made do not provide, the Judge hearing an appeal may, in relation to the particular case, give such directions as he thinks fit and the directions shall be given effect in the conduct of that appeal. 16. Mtgage brokers to be registered. (1) Subject to this Act, a person shall not carry on a business of mtgage broking unless he is registered in respect of that business. (2) Subject to this Act, a person shall not hold himself out as carrying on a business of mtgage broking unless he is registered in respect of that business. 17. Mtgage broker to carry on business under specified names. (1) Subject to the Business Names Act , a registered person may carry on business in accdance with his registration under the name names specified in the register. (2) A registered person shall not carry on a business of mtgage broking hold himself out as carrying on such a business under a name names other than the name of the registered person the name names under which he is authised so to do in accdance with subsection (1). 18. Mtgage broker not to carry on business with unregistered partner. A registered person shall not carry on a business of mtgage broking in partnership with a person who is not a registered person. 19. Mtgage broker not to carry on business at unregistered address. A registered person shall not carry on the business of mtgage broking except at an address registered as an address at which that person's business as a mtgage broker is to be carried on. 20. Mtgage broker to advertise registered name and address. A registered person shall not publish, cause to be published, suffer to

9 Mtgage Brokers Act 1987, No be published, by any means whatever, an advertisement relating to in connexion with his business of mtgage broking without specifying therein- (a) subject to paragraph (b), his name a name that is one of the particulars entered in the register in respect of him; (b) in a case where the business is carried on under a name other than his own, that other name and his name; and (c) an address registered as an address at which his business as a mtgage broker is is to be carried on. PART III-CONDUCT OF BUSINESS OF MORTGAGE BROKING 21. Mtgage broker to keep recds. (1) A mtgage broker shall- (a) at a time not later than immediately after he effects a conveyance transfer of a mtgage, legibly make in a bound book a manner approved in writing by the registrar a written recd containing full particulars of the transaction involving that conveyance transfer; and (b) preserve a recd made by him under this subsection f a period of at least seven years after the date of the conveyance transfer of mtgage to which the recd relates. (2) An entry in a written recd kept at an address registered as an address at which the business of a mtgage broker is to be carried on shall be deemed, unless the contrary is proved, to have been made therein by with the authity of the person in respect of whom that address is so registered as a particular. 22. Misrepresentation an offence. A mtgage broker a person acting on his behalf shall not by any false, misleading deceptive statement, representation promise, by dishonest concealment of material facts induce, attempt to induce a person to enter into an agreement f with respect to a conveyance transfer of a mtgage. 23. Restrictions on mtgage broker 's right to fee. (1) Subject to this section, in respect of each transaction in the business of a mtgage broker there shall be but one fee payable and that fee shall be paid by the I rson persons who convey transfer the mtgage mtgages in that transaction. Where there are two me mtgage brokers engaged in the one transaction the fee payable pursuant to this section shall be shared by them. (2) A mtgage broker shall not demand, receive accept, directly indirectly, retain, solely as a partner with any other person,

10 754 Mtgage Brokers Act 1987, No. 55 any moneys f in respect of procuring, negotiating arranging the conveyance transfer of a mtgage- (a) unless (i) his engagement appointment to act as a mtgage broker is in writing signed by the person charged to be charged with the payment of his fee; (ii) an actual conveyance transfer of the mtgage occurs as a result of the activity of the mtgage broker with a view to procuring, negotiating arranging the same; and (iii) his receipt, acceptance retention of those moneys is would be permitted by subsection (1); (b) if- (i) following the conveyance transfer of the mtgage, he will have, directly indirectly, an interest in the mtgage; (ii) the amount of those moneys exceeds the rate per centum prescribed f the time being of the sum paid as consideration f the conveyance transfer of the mtgage. (3) Upon convicting a person of an offence against subsection (2) the adjudicating court may der him to refund any moneys received, accepted retained by him contrary to that subsection together with interest at such rate as is fixed by the Court, not exceeding the prescribed per centum, where a per centum is not prescribed, not exceeding 8 per centum per annum from the time of the receipt, acceptance retention of the moneys until the time when it is refunded. The amount dered to be refunded together with interest accrued thereon shall constitute a debt due and owing to the person to whom the refund is dered to be made and may be recovered by action f debt in a court of competent jurisdiction. (4) Notwithstanding the provisions of subsection (1) (2), a registered person who has been engaged appointed in writing to act as a mtgage broker may recover, in addition to his fee, from the person charged with the payment of his fee an amount paid by the mtgage broker as the cost of obtaining a valuation of any security to which the mtgage mtgages sought to be conveyed transferred relate. PART IV-MISCELLANEOUS 24. Power of registrar to enter premises. (1) F the purpose of ascertaining whether the provisions of this Act are being have been complied with by a person who is has been a mtgage broker, the

11 Mtgage Brokers Act 1987, No registrar and any other person authized in writing in that behalf by him may- (a) enter premises where the business of the firstmentioned person is being has been carried on; (b) require the production of recds; (c) inspect and require explanation of any recd; and (d) take notes, copies and extracts of from any recd statement produced pursuant to this section. (2) Where the registrar a person authized by him requires production under subsection (1) of a recd that is not in writing, is not written in the English language is not decipherable on sight, the requirement to produce the recd shall be deemed to be a requirement to produce, in addition to the recd if it is in writing, instead of the recd if it is not in writing, a statement, written in the English language and decipherable on sight, containing the whole of the infmation in the recd. (3) The registrar a person authized by him shall so far as he is able exercise the powers under this section in a manner that causes as little inconvenience to the business of the mtgage broker as is consistent with the exercise of the powers. (4) (a) Befe the registrar a person authized by him enters a part of any premises other place which part is used exclusively as a dwelling-house he shall, save where he has the permission of the occupier of that part to his entry, obtain from a justice a warrant to enter. (b) A justice who is satisfied upon the complaint of the registrar an authized person that there is reasonable cause to suspect that an offence against this Act has been, is being is about to be committed on any premises may issue his warrant authizing the registrar any person authized by the registrar to enter the premises named in the warrant f the purpose of exercising therein the powers and authities conferred upon the registrar by under this Act. (c) A warrant shall be, f the period of 14 days from the date of its issue, sufficient authity f the registrar and any person authized by him- (i) to enter the premises specified in the warrant; and (ii) to exercise therein the powers and authities conferred upon the registrar by under this Act. (d) F the purposes of this subsection, premises that are used as a dwelling-house do not include the curtilage of those premises.

12 756 Mtgage Brokers Act 1987, No Persons not to obstruct registrar. (1) A person shall not- (a) wilfully delay obstruct the registrar other person authized by him in the exercise of powers under section 24; (b) refuse fail, without reasonable excuse, to produce, conceal attempt to conceal, any recd statement that under section 24 (1) (2) he is required to produce; (c) being a mtgage broker, where the mtgage broker is a body cpate, an officer of the mtgage broker, refuse fail to answer a question give an explanation relating to any such recd statement put to required of him by a person entitled to require production of the recd statement who first infms him that he is required and obliged by this section to answer the question give the explanation; (d) being a mtgage broker, where the mtgage broker is a body cpate, an officer of the mtgage broker, give to a question relating to any recd statement an answer that he knows is false misleading give an explanation of any recd statement that he knows is a false misleading explanation. Penalty: 40 penalty units. (2) A person is not excused from answering a question put to him by the registrar other authized person on the ground that the answer might tend to incriminate him but, where he claims, befe answering the question, that that answer might tend to incriminate him, the answer is not admissible in evidence against him in proceedings f an offence against this Act other than an offence under subsection (1) (a) (b) (d). 26. Dispensing with production of certificate of registration. The registrar may exercise his powers under sections 11, 12 and 14 notwithstanding that a relevant certificate of registration has not been delivered to him where he is satisfied that the certificate has been lost. 27. Issue of fresh certificate of registration. Where the registrar is satisfied that a certificate of registration is lost if, f any reason, he considers a certificate of registration should be replaced, the registrar may issue a fresh certificate in lieu of the lost certificate may cancel the current certificate and issue a fresh certificate in lieu thereof. 28. General penalty. A person who contravenes fails to comply with a provision of this Act commits an offence against this Act and, save where a specific penalty is otherwise provided, is liable to a penalty of 20 penalty units. 29. Offence by body cpate. Where an offence against this Act committed by a body cpate is proved to have been committed with the consent connivance of a person who is a direct, manager, secretary other officer of the body cpate, that person, as well as the body cpate, shall be deemed to have committed that offence and is liable to be proceeded against and punished accdingly.

13 Mtgage Brokers Act 1987, No Proceedings f offences. (1) An offence against this Act may be prosecuted in a summary way under the Justices Act , upon the complaint of- (a) the registrar; (b) any person authized in that behalf either generally in the particular case by the Minister. (2) A prosecution f an offence against this Act may be brought within three years after the offence is committed,, with the consent of the Minister, at any later time. (3) An authity to prosecute purpting to have been signed by the Minister is evidence of that authity without proof of the signature of the Minister. 31. Fees and penalties. All fees paid and all penalties recovered and costs incurred in relation to proceedings under this Act shall be paid to and fm part of the Consolidated Revenue Fund. 32. Evidentiary provisions. In a proceeding f the purposes of this Act- (a) a document purpting to be a certificate relating to any entry in the register a copy of an extract from such entry shall, upon its production in that proceeding, be evidence and in the absence of evidence to the contrary, conclusive evidence of the matters contained in the document; (b) a document purpting to be signed by the registrar stating that at a specified time during a specified period a person named in the document was was not registered was registered subject to specified conditions shall, upon its production in that proceeding, be evidence and, in the absence of evidence to the contrary, conclusive evidence of: the matters contained in the certificate. 33. Service of documents. (1) Where, under this Act, a document notice is required permitted to be given to served on a person, the document notice may be given served- (a) where the person is a natural person, by giving it to serving it personally on the person by sending it by post to the person at the person's usual last known place of abode business; (b) where the person is a body cpate, by leaving it at sending it by post to the registered office of the body cpate; (c) where the person is a registered person, by giving it to serving it personally on the person by leaving it at sending it by post to an address registered as that person's place of business.

14 758 Mtgage Brokers Act 1987, No. 55 (2) If a document left at sent by post to the address of the registered office of a body cpate will not be, is not likely to be, received by the body cpate, a document may be served on the body cpate by delivering a copy of the document personally to each of 2 directs of the body cpate who reside in the State by sending a copy of the document by post to each of 2 such directs at the address of those directs last known to the person sending the copy of the document. (3) In subsections (1) and (2), "registered office" means- (a) the office of the body cpate that is the registered office principal office in accdance with the law of the State Territy by under which the body cpate is incpated; (b) where the body cpate is not incpated in Australia, an office registered under the law of a State Territy as a registered office of the body cpate; (c) in the case of a body cpate that has no such registered office principal office, the principal place of business of the body cpate in the State, if it has no place of business in the State, its principal place of business in Australia. 34. Regulations. (1) The Govern in Council may make regulations, whether general to meet particular cases, with respect to- (a) the conditions f registration of mtgage brokers and the grounds upon which the names of mtgage brokers may be removed from the register; (b) the fm of the register and the particulars to be entered in it; (c) the fees to be paid; (d) inspection of the register; (e) all matters required permitted by this Act to be prescribed where no other means of prescription are provided f; (f) the exemption of any individual person class classes of persons from registration; (g) the duties, powers and authities of the registrar;

15 Mtgage Brokers Act 1987, No (h) all matters that in his opinion are necessary convenient f the administration of this Act to achieve the objects and purposes of this Act. (2) A regulation may impose a penalty not exceeding 4 penalty units f a breach of the regulation.