1 Title
This Act is the Auctioneers Act 2013.
2 Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3 Purpose of Act
This Act provides for the registration of auctioneers and for related matters, and repeals the Auctioneers Act 1928.
4 Interpretation
(1)
In this Act, unless the context otherwise requires,—
auction means a process in which property of any kind (including goods, services, and interests in land) is offered for sale by an auctioneer on behalf of a vendor, and—
(a)
bids for the property are placed with the auctioneer in real time, whether in person, by telephone, via the Internet, or by any other means; and
(b)
the property is sold when the auctioneer so indicates
chief executive means the chief executive of the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act
person concerned in the management of a company means—
(a)
a director of the company, as that term is defined in section 126 of the Companies Act 1993:
(b)
the chief executive of the company, or any person occupying the equivalent position
register means the register of auctioneers maintained by the Registrar under section 21
registered auctioneer means an individual or a company that is registered under this Act as an auctioneer
Registrar means the Registrar of Auctioneers appointed under section 19
vendor, in relation to an auction, means the person whose property is offered for sale by an auctioneer.
(2)
To avoid doubt, a process of selling property is not necessarily an auction for the purpose of this Act just because it is described as an auction. For example, a process described as an Internet auction, but that provides that any contract of sale resulting from the process is a contract directly between the winner of the bidding and the seller of the property, is not an auction for the purpose of this Act.
Registration requirements
5 Registration of person carrying on business as auctioneer
(1)
A person must not carry on business as an auctioneer unless the person is registered under this Act as a registered auctioneer.
(2)
Subsection (1) is subject to the exceptions provided in—
(3)
A person carries on business as an auctioneer if the person, in trade, charges a fee or commission for, or requires the payment of any part of the proceeds of, a sale by auction, other than as an employee or agent of a registered auctioneer.
Section 5(2)(a): amended, on 8 September 2018, by section 87(2) of the Statutes Amendment Act 2018 (2018 No 27).
6 Disqualification from registration
(1)
A person who is an individual is disqualified from registration if he or she is—
(a)
under 18 years of age; or
(b)
an undischarged bankrupt; or
(c)
a person whose registration under this Act has been cancelled within the preceding 5 years; or
(d)
prohibited from being a director of, or being concerned or taking part in the management of, an incorporated or unincorporated body under any enactment or order made under any enactment; or
(e)
a person who has been convicted of a crime involving dishonesty within the preceding 5 years; or
(f)
a person who has been convicted, within the preceding 5 years, of—
(i)
an offence against section 40 of the Fair Trading Act 1986 for contravention of any provision of Part 1 or subpart 4 of Part 4A of that Act; or
(g)
subject to an order suspending or cancelling a licence under section 110 of the Real Estate Agents Act 2008; or
(h)
banned, or subject to a banning order, under section 68 or 69 of the Motor Vehicle Sales Act 2003; or
(i)
subject to a property order made under section 30 or 31 of the Protection of Personal and Property Rights Act 1988.
(2)
A company is disqualified from registration if—
(a)
a person concerned in the management of the company is disqualified from registration under subsection (1); or
(b)
the company’s registration under this Act has been cancelled within the preceding 5 years; or
(c)
the company has been convicted, within the preceding 5 years, of—
(i)
an offence against section 40 of the Fair Trading Act 1986 for a contravention of any provision of Part 1 or subpart 4 of Part 4A of that Act; or
(d)
the company is subject to an order suspending or cancelling a licence under section 110 of the Real Estate Agents Act 2008; or
(e)
the company is banned, or subject to a banning order, under section 68 or 69 of the Motor Vehicle Sales Act 2003; or
(f)
the company is in liquidation, receivership, or voluntary administration; or
(g)
the name of the company has been removed from the register of companies kept under section 360(1)(a) of the Companies Act 1993.
Compare: 2003 No 12 ss 24, 25
Restriction on who registered auctioneers may engage as auctioneer
7 Restriction on who registered auctioneers may engage as auctioneer
A registered auctioneer must not engage an auctioneer to conduct a sale on the registered auctioneer’s behalf if the auctioneer is disqualified from registration under section 6(1).
Application for registration
8 Application for registration to carry on business as auctioneer
(1)
A person who wishes to carry on business as an auctioneer may apply to the Registrar, in accordance with this Act, for registration as a registered auctioneer.
(2)
Every application must—
(a)
be in the form (if any) prescribed by the Registrar; and
(b)
include the information and material specified in section 9; and
(c)
include the prescribed fee (if any).
Compare: 2003 No 12 s 31
9 Information and material to be included in application
(1)
Every application for registration by an individual must set out or be accompanied by the following:
(a)
the person’s full name, residential address, and date of birth; and
(b)
the trading name, or proposed trading name, of the applicant’s auction business; and
(c)
the address of the principal place at which the applicant carries on, or proposes to carry on, business as an auctioneer; and
(d)
the applicant’s address for service; and
(e)
a statement that the applicant is not disqualified from registration; and
(f)
any other prescribed information or material.
(2)
Every application for registration by a company must set out or be accompanied by the following:
(a)
the name of the company; and
(b)
the trading name, or proposed trading name, of the applicant’s auction business; and
(c)
the address of the principal place at which the applicant carries on, or proposes to carry on, business as an auctioneer; and
(d)
the full name, residential address, and date of birth of each person concerned in the management of the company; and
(e)
the applicant’s address for service; and
(f)
a statement, made by a person concerned in the management of the company, that the company and each person (who must be individually named) concerned in the management of the company is not disqualified from registration; and
(g)
any other prescribed information or material.
(3)
The address for service of an applicant must—
(a)
identify the place by reference to its street address; and
(b)
include, if available, the applicant’s fax number and email address; and
(c)
not be that of a PO Box number, a document exchange, or a rural delivery.
Compare: 2003 No 12 ss 31, 32
10 Acceptance of application
(1)
The Registrar must accept an application for registration as an auctioneer if he or she is satisfied that the application is properly completed and,—
(a)
in the case of an application by an individual, that the person is not disqualified from registration; and
(b)
in the case of an application by a company, that the company and each person concerned in the management of the company are not disqualified from registration.
(2)
If the Registrar accepts an application, he or she must, as soon as practicable, enter the applicant’s name on the register as a registered auctioneer, and provide the applicant with a registration certificate containing a unique registration number and showing the date of registration.
Compare: 2003 No 12 ss 33, 34, 36
11 Refusal of application
(1)
If the Registrar does not accept an application for registration, he or she must give the applicant written notice of the refusal and the reasons for it within 10 working days after the decision is made.
(2)
The applicant has the right, under section 22, to appeal to the District Court against the Registrar’s refusal.
Compare: 2003 No 12 s 35
Section 11(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Duration of registration
12 Registration expires after 12 months
Registration as a registered auctioneer expires 12 months from the date of registration, unless the registration is sooner—
(a)
renewed by supplying an annual confirmation under section 13; or
(c)
surrendered by the registered auctioneer.
Compare: 2003 No 12 s 37
13 Annual confirmation
(1)
Every registered auctioneer must supply to the Registrar an annual confirmation of details relating to the registered auctioneer.
(2)
The annual confirmation must—
(a)
be in the form (if any) required by the Registrar and be accompanied by the prescribed fee (if any); and
(b)
confirm that the auctioneer is not disqualified from registration.
(3)
If a registered auctioneer does not comply with subsection (1) before the anniversary of the auctioneer’s date of registration, the Registrar may assume the person is no longer carrying on business as an auctioneer and may amend the register of auctioneers accordingly.
Compare: 2003 No 12 s 39
14 Cancelling registrations
(1)
The Registrar may cancel the registration of a registered auctioneer if satisfied,—
(a)
in the case of a registered auctioneer who is an individual, that the individual is disqualified from registration (otherwise than by reason of the making of a property order under section 30 of the Protection of Personal and Property Rights Act 1988 (which relates to temporary orders)); or
(b)
in the case of a registered auctioneer that is a company, that the company, or any person concerned in the management of the company, is disqualified from registration; or
(c)
that the registered auctioneer was registered by reason of any false or fraudulent representation or declaration, whether made orally or in writing; or
(d)
that any application fee for registration or annual confirmation fee has subsequently been dishonoured; or
(e)
that the registered auctioneer has ceased to carry on business as an auctioneer; or
(f)
that the registered auctioneer engaged a person as an auctioneer to conduct a sale on the registered auctioneer’s behalf, knowing that the person is disqualified from registration.
(2)
Before cancelling a registration under this section, the Registrar must notify the registered auctioneer, and the notice must—
(a)
set out the reasons for the proposed cancellation; and
(b)
give the registered auctioneer the opportunity to make, within 20 working days after the date of the notice, written submissions as to why the registration should not be cancelled; and
(c)
state the date (which must be a date after the last date on which submissions may be received) on which the cancellation is proposed to take effect.
(3)
The Registrar must consider any written submissions received.
(4)
If the Registrar decides to cancel a registration, the Registrar must give written notice to the registered auctioneer of the cancellation, the date on which it takes effect, and the reason for the cancellation.
Compare: 2003 No 12 ss 43–45
15 When registered auctioneer ceases to be registered
A registered auctioneer ceases to be registered on the date, determined by the Registrar and shown on the register, that follows the expiry, cancellation, or surrender of the auctioneer’s registration.
Compare: 2003 No 12 ss 45, 46, 48, 49
16 Obligation to notify Registrar of changes
(1)
A registered auctioneer must notify the Registrar if—
(a)
any of the following become disqualified from registration:
(i)
the registered auctioneer (whether an individual or a company):
(ii)
in the case of a registered auctioneer that is a company, a person concerned in the management of the company:
(b)
the registered auctioneer knows that any details on the register are no longer correct:
(c)
the registered auctioneer ceases to carry on business as an auctioneer.
(2)
Notification under subsection (1) must be made within 10 working days after the relevant matter is known to the registered auctioneer.
(3)
If, in the case of a registered auctioneer that is a company, a new person becomes concerned in the management of the company, the registered auctioneer must, within 20 working days,—
(a)
notify the Registrar, in writing, of the person’s full name, residential address, and date of birth; and
(b)
send to the Registrar a statement confirming that the person to whom the notice relates is not disqualified from registration.
(4)
An applicant for registration must notify the Registrar if the applicant becomes aware, before receiving notice of the decision on the application, that any information included in the application is not, or is no longer, true and correct.
Compare: 2003 No 12 ss 40, 40A
Record-keeping obligations
17 Auctioneer record
(1)
Every registered auctioneer must keep an accurate and up-to-date auctioneer record.
(2)
An auctioneer record must show the following information with respect to property offered for sale by auction by a registered auctioneer:
Vendor
(a)
the vendor’s full name, date of birth, contact address, and contact telephone number (if any):
Property
(c)
a description of the property:
Auction
(e)
if the property was auctioned by lot, the lot number:
(f)
whether the sale was subject to a reserve price:
(g)
whether vendor bids were permitted:
(h)
the name of the auctioneer who conducted the sale:
(i)
the highest bid, and whether it was a vendor bid:
(j)
the price at which the property was sold:
(k)
the amount of proceeds paid to the vendor:
(l)
the date on which the proceeds were paid to the vendor.
(3)
The information required to be shown in an auctioneer record must be added to the record as soon as practicable after the information is available.
(4)
The information in an auctioneer record must be kept on the record for at least 3 years.
Compare: 2004 No 70 ss 51, 53
18 Storage and inspection of auctioneer record
(1)
Every auctioneer record must be kept available for inspection at the address of the principal place at which the registered auctioneer carries on business as an auctioneer.
(2)
The registered auctioneer must make the auctioneer record available for inspection, on request at any reasonable time, by any of the following:
(b)
an employee of the Commerce Commission authorised, in writing, to inspect auctioneer records:
(c)
a vendor who has sold property through the auctioneer, but only in respect of the parts of the record that relate to the vendor and that property.
(3)
A registered auctioneer must, on request, give any person who has a right to inspect an auctioneer record a copy of any part of the record that he or she is entitled to inspect.
Compare: 2004 No 70 ss 53, 54
Registrar and register
19 Registrar of Auctioneers
(2)
The person holding office as the Registrar of Companies under the Companies Act 1993 immediately before the commencement of this Act must be treated as if that person had been appointed as the Registrar of Auctioneers in accordance with this section.
(3)
The functions of the Registrar are as follows:
(a)
to establish and maintain a register of registered auctioneers:
(b)
to determine applications for registration:
(c)
to issue registration certificates:
(e)
to perform any other function conferred on the Registrar by this Act.
(4)
The Registrar may delegate any of the Registrar’s functions or duties to any other person, except the power of delegation.
(5)
A delegation must be in writing, may be made subject to any restrictions or conditions the Registrar thinks fit, is revocable in writing at any time, and does not prevent the performance or exercise of any function or duty by the Registrar.
(6)
A person to whom any functions or duties are delegated may perform them in the same manner, and with the same effect, as if they had been conferred directly by this section.
(7)
A person who appears to act under a delegation is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.
Compare: 2003 No 12 ss 60, 61, 62
Section 19(1): amended, on 7 August 2020, by section 135 of the Public Service Act 2020 (2020 No 40).
20 Registrar’s certificate
A certificate signed by the Registrar is sufficient evidence, in the absence of proof to the contrary, that—
(a)
a particular person was or was not registered as an auctioneer at any particular time or during any period specified in the certificate; or
(b)
any entry in the register is as stated in the certificate.
Compare: 2003 No 12 s 63
21 Register of auctioneers
(1)
The Registrar must ensure—
(a)
that a register of registered auctioneers, called the register of auctioneers, is established and maintained; and
(b)
that, as far as possible, the information in it is accurate and up to date.
(2)
The register must be in electronic form and may also be kept in any other form that the Registrar thinks fit.
(3)
The Registrar must ensure that the part of the register that contains the name, contact details, and address for service of each registered auctioneer is available to the public for inspection via the Internet at all reasonable times.
Compare: 2003 No 12 ss 52, 53, 55
Appeals against decisions of Registrar
22 Appeals
(1)
A person may appeal to the District Court against the following decisions of the Registrar:
(a)
a refusal to register the person as an auctioneer:
(b)
a decision to cancel the person’s registration.
(2)
An appeal must be made by giving notice of appeal no later than 20 working days after the date on which notice of the decision was communicated to the appellant or such further time as the District Court may allow.
(3)
In determining an appeal, the District Court may confirm or reverse the decision of the Registrar.
(4)
A person may appeal to the High Court from a decision by the District Court under this section on a question of law only.
(5)
However, nothing in this section affects the right of any person to apply for judicial review.
Compare: 2003 No 12 ss 64, 67
Section 22(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 22(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 22(4): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
23 Interim order by District Court
(1)
At any time before the final determination of an appeal relating to a registered auctioneer, the District Court may make an interim order suspending the cancellation by the Registrar of any registration.
(2)
An interim order may be subject to any conditions that the District Court thinks fit.
(3)
If the District Court makes an interim order, the Registrar of that court must send a copy of the order to the Registrar and the Registrar must immediately amend the register so as to give effect to the order.
Compare: 2003 No 12 ss 65, 66
Section 23(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 23(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Offences
24 Offences
(1)
A person who fraudulently retains the proceeds of property sold at auction, or fraudulently fails to pay the correct balance to the vendor, or, with intent to defraud the vendor, gives a false account of the sale, commits an offence and is liable on conviction to,—
(a)
in the case of an individual, a term of imprisonment not exceeding 2 years; or
(b)
in any other case, a fine not exceeding $200,000.
(2)
A person who does any of the following commits an offence and is liable on conviction to a fine not exceeding $10,000 (if an individual) or $30,000 (in any other case):
(a)
carries on business as an auctioneer, contrary to section 5, while not being a registered auctioneer:
(b)
holds out as being a registered auctioneer while not being a registered auctioneer:
(c)
engages a person to conduct an auction on his or her behalf, knowing that the person is disqualified from registration:
(d)
gives or makes any statement that is false in a material particular to the Registrar in connection with an application for registration or confirmation of registration:
(e)
fails to comply with any of the obligations in section 16 (which relate to notifying the Registrar):
(f)
fails to comply with the requirements of sections 17 and 18 (which relate to record-keeping).
Regulations
25 Regulations
(1)
The Governor-General may, by Order in Council, make regulations for the following purposes:
(a)
prescribing information and material to be included in applications for registration:
(b)
prescribing fees associated with the registration of auctioneers.
(2)
Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section |
| Publication | | PCO must publish it on the legislation website and notify it in the Gazette | | LA19 s 69(1)(c) |
| Presentation | | The Minister must present it to the House of Representatives | | LA19 s 114, Sch 1 cl 32(1)(a) |
| Disallowance | | It may be disallowed by the House of Representatives | | LA19 ss 115, 116 |
| This note is not part of the Act. |
Section 25(2): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Transitional provisions
26 Application of Act to existing licence holders and others
(1)
After the commencement of this Act, the following persons are deemed to have been registered as auctioneers under this Act on the day on which this Act comes into force:
(a)
every person who carries on business as an auctioneer and who, immediately before the commencement of this Act, holds a licence issued under the Auctioneers Act 1928 that has not expired:
(b)
every person who is in partnership with a person referred to in paragraph (a) and whose name is endorsed on the licence.
(2)
This Act applies to every person who is deemed to be a registered auctioneer, except as provided in this section.
(3)
The registration of a person who is deemed to be registered by virtue of subsection (1) expires 6 months after the date on which this Act comes into force.
(4)
Despite anything in the Auctioneers Act 1928, every licence issued under that Act that is in force immediately before the commencement of this Act expires on the date on which this Act comes into force.
(5)
The Registrar is not obliged to ensure that the names and other details of people to whom this section applies are entered onto the register of auctioneers, unless or until they are registered in accordance with this Act.
Consequential and other amendments
27 Amendments removing exemption from requirement to be registered
The enactments set out in Part 1 of the Schedule are amended as set out in that schedule, for the purpose of removing certain exemptions that allow auctions in some circumstances to be conducted by a person other than a registered auctioneer.
28 Consequential repeal and amendments
(3)
The enactments set out in Part 2 of the Schedule are consequentially amended as set out in that schedule.