South Australian Consolidated Acts

CONVEYANCERS ACT 1994 - SCHEDULE 2

Schedule 2—Transitional provisions

1—General

        (1)         A person who held a licence as a land broker under the Land Agents, Brokers and Valuers Act 1973 immediately before the commencement of this Act will be taken to have been registered as a conveyancer under this Act.

        (2)         An approval, appointment or order in force under the Land Agents, Brokers and Valuers Act 1973 immediately before the commencement of this Act in relation to a land broker or former land broker will be taken to be an approval, appointment or order in force under the corresponding provision of this Act.

        (3)         A notice given or served under the Land Agents, Brokers and Valuers Act 1973 in relation to a land broker or former land broker has effect as a notice given or served under the corresponding provision of this Act.

        (4)         A reference in an Act or other instrument to a licensed land broker will be taken to be a reference to a conveyancer registered under this Act.

2—Mortgage financiers

        (1)         In this clause—

mortgage financier means a person who—

            (a)         is—

                  (i)         a conveyancer; or

                  (ii)         an associate of a conveyancer; and

            (b)         engages in mortgage financing;

trust money , in relation to a mortgage financier, means money received by a mortgage financier in the mortgage financier's capacity as such to which the mortgage financier is not wholly entitled at law and in equity.

        (2)         For the purposes of this clause, a person is an associate of another if—

            (a)         they are partners; or

            (b)         one is a spouse, domestic partner, parent or child of the other; or

            (c)         they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or

            (d)         one is a body corporate and the other is a director of the body corporate; or

            (e)         one is body corporate and the other is a person who has a legal or equitable interest in five per cent or more of the share capital of the body corporate; or

            (f)         a chain of relationships can be traced between them under any one or more of the above paragraphs.

        (3)         This clause applies—

            (a)         to trust money received by a mortgage financier before the commencement of this Act; and

            (b)         where trust money received by a mortgage financier was lent to another on the security of a mortgage before the commencement of this Act—to trust money received by the mortgage financier (whether before or after that commencement) by way of payment of principal or interest, or both, under that loan.

        (4)         Part 4 applies to a mortgage financier as if—

            (a)         a reference in that Part to a conveyancer were a reference to a mortgage financier; and

            (b)         a reference in that Part to trust money were a reference to trust money to which this clause applies.

        (5)         The power of the Governor to make regulations under this Act includes power to make regulations requiring mortgage financiers to provide specified information to prospective investors or regulating or making provision with respect to any other matter relating to mortgage financiers.

3—Special provisions relating to Growden Investments

        (1)         A failure on the part of Growden Investments to disclose material facts with respect to the investment of trust money to which clause 2 applies will be taken to be a fiduciary default for the purposes of Part 4.

        (2)         Subclause (1) applies with respect to any such failure on the part of Growden Investments (and accordingly the Commissioner must, to the extent that a relevant claim based on a failure on the part of Growden Investments to disclose material facts has been rejected, on application by the claimant, reassess the claim).

        (3)         Despite clause 2(4), no interest is payable under section 39(2) with respect to an entitlement to compensation arising from fiduciary default on the part of Growden Investments.

        (4)         In this clause—

Growden Investments means G.C. Growden Pty. Ltd. and includes any associate of G.C. Growden Pty. Ltd. (as in existence at any time).

        (5)         For the purposes of this clause, a person is an associate of G.C. Growden Pty. Ltd. if the person would be an associate of that person under clause 2 (assuming (if necessary for the purposes of this provision) the continued existence of that person and that company).