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Infringements - settlement agents
The Settlement Agents Act 1981 (the Act) imposes serious obligations on the settlement industry and the way it operates. Failing to meet those obligations can result in the Department issuing an infringement notice, prosecuting offending licence holders before a court or initiating disciplinary action in the State Administrative Tribunal (SAT).
The current maximum penalty for an infringement notice can be as high as $600. The SAT also has the power to suspend or cancel an agent’s licence in some circumstances where an agent’s conduct contravenes the law and prejudices or may prejudice any rights or interests of a party to a transaction.
The SAT may impose a fine based on an allegation up to 12 months after the day on which an agent had surrendered a licence or triennial certificate or ceased to be licensed or hold a triennial certificate.
Agents should read the following list in context with the full provisions of the Act and Regulations.
Copies of the Act and Regulations are available from the State Law Publisher.
The following table outlines offences for which an Infringement Notice may be given under the Act.
[r. 15]
| Part 1 - offences under section 65 (Offences under this Division) Infringement notices served under the Criminal Prosecutions Regulations 2005 regulation 6A |
Modified penalty | |
|---|---|---|
| s. 51(1) | Failing to have trust accounts audited by a qualified auditor | $600 |
| s. 51(3)(a) | Failing to deliver audited and verified trust accounts to the Commissioner within three months of a year end, or failing to deliver a copy of the verified report to the settlement agent | $600 |
| Part 2 — Offences under section 120 (General penalty for offences) Infringement notices served under the Criminal Prosecutions Regulations 2005 regulation 6A |
Modified penalty ($) |
|
|---|---|---|
| s. 36(1) | Failing to notify the Commissioner within 14 days of either commencing, or ceasing to carry on, a business as a settlement agent. |
400 |
| s. 37(1) | Failing to have a registered office in Western Australia while carrying on a business as a settlement agent, |
200 |
| s. 38(1) | Failing to notify the Commissioner of the situation of a branch office from which is carried on the business of a settlement agent $1,000 |
200 |
| s. 38(2) | Failing to nominate and have present at all times at a registered branch office, a branch manager who holds a current triennial certificate - $1,000 |
200 |
| s. 38(3) | Nomination of a branch manager who is also nominated by another licensee as a branch manager, or is nominated as a branch manager in respect of another office, or who carries on a business as a settlement agent on his own account. |
400 |
| s. 41(1)(a) | Carrying on a business as a settlement agent under more than one business name, or under a name other than that endorsed on the triennial certificate - $1,000 |
200 |
| s. 41(1)(b) | Failing to identify, on all correspondence in the business of a settlement agent, the person or persons constituting the licensee. |
200 |
| s. 41(2) | Failing to give to the Commissioner, in writing and within 14 days of the first action, notification of any alteration to the name, style, title or designation under which the business of a settlement agent is carried out. $1.000 |
200 |
| s. 42(1)(a) | Failure to keep exhibited at the registered office and every branch office, in a prominent position at a registered office, a notice bearing licensee name, style and title and as otherwise defined at this section of the Settlement Agents Act 1981 |
400 |
| s. 42(1)(b) | Failure to keep exhibited, in a prominent position at a branch office, a notice bearing the name of the manager, and the address of the registered office of the licensee. |
400 |
| s. 42(2)(a) | Failure to identify, on all correspondence and on the outside of all documents prepared, that the licensee is a real estate settlement agent, or a business settlement agent, or both, and the registered office of the business |
400 |
| s. 42(2)(b) | Failure to identify, on all correspondence and on the outside of all documents prepared, that the manager of a branch of the business is a real estate settlement agent, or a business settlement agent, or both, and the address of the branch office of the business |
400 |
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