Commercial Agents (Debt Collectors and Process Servers) are licensed pursuant to the Property Agents and Motor Dealers Act 2000. The act sets out the criteria to be satisfied prior to issuing a license to an applicant. The criteria (which will be addressed in a subsequent article) are principally setout in s45 and s49 of the Act. A Commercial Agent's license confers no additional powers upon him (or her) but rather authorises the holder of the license to perform specific activities, which can be briefly listed as:

1. to find, or repossess, for a person any goods or chattels that the person is entitled to repossess under an agreement;
2. to collect or request payment of debts;
3. to serve any writ, claim, application, summons or other process.

That is all a license does - it does not confer any special powers relating to trespass, arresting a person, seizing goods and the like.

Commercial Agents are governed, not only by the Act, but also by a code of practise published by the Dept of Fair Trading (Qld) - Property Agents and Motor Dealers Act 2000 PROPERTY AGENTS AND MOTOR DEALERS (COMMERCIAL AGENCY PRACTICE CODE OF CONDUCT) REGULATION 2001.

The code of conduct in my view is a well written piece of legislation that probably deserves a little more merit (and publication) than it seems to receive. The object of the legislation is to enforce a fair and honest approach upon those who engage in the business of collecting money on behalf of others, and most importantly, make them accountable.

The objective of the code of conduct is to regulate the manner in which Commercial Agents conduct their business and increasing their accountability to both clients and customers (that word in my view is a poor choice - the regulations define "a customer" "as a person who a Commercial Agent deals with on behalf of a client" - a more appropriate word, in my view, would have been "respondent").

The Act seeks to reach the objects of the Act by:

• setting conduct standards for Commercial Agents;
• establishing principles for fair trading in a commercial agency practice; and
• providing s system of complaint resolution for complaints about commercial agency practice

The code contains several sections which relate to the manner in which the Commercial Agent interacts with his client and the customer (respondent) by providing a set of rules and guidelines as to how clients (and customers of the clients) are to be treated, and the behaviour expected of a competent Commercial Agent.

s4 (Compliance with code) contains provisions of which the Commercial Agent must comply. This code over rides an instruction or request that does not comply with this code from a client or if the agent is an employee, from the agents employer.

A Commercial Agent is required to carry out enquiries as to authenticate the instructions given by the client[1] to avoid error, omission, exaggeration or misrepresentation.

A Commercial Agent must be able to demonstrate he has a reasonable understanding of the Act and the Code.

The days of creditors acquiring a helping hand from the "local heavy" are fast drawing to a close; bullying, scare mongering and late night calls (and visits) are now at an end.

The Obligations imposed by the code of conduct can be summarily listed out as follows:

Fiduciary Obligations - a Commercial Agent must comply with a fiduciary obligation as incurred as an agent. 

Honesty Fairness and Professionalism - A Commercial Agent must act honestly, fairly and professionally in the conduct of a commercial agency practise and treat a customer (respondent) honestly and fairly.

Skill, Care and Diligence- a Commercial Agent must exercise reasonable skill care and diligence in the conduct of a commercial agency practice and complete all work given by a client as soon as is reasonably practicable.

Agent To act in clients’ best interests - A Commercial Agent must at in the best interests of the client unless it is unlawful or unreasonable to do so

Agent to act in accordance with clients instructions - A Commercial Agent must act in accordance with the clients instructions  unless it is contrary to this code or unlawful to so do

Agents Are to Keep clients informed of developments - A commercial client must keep a client informed of an significant developments or issue in relation to the activity being performed

In addition to the items mentioned above, the Commercial Agent must not engage in high pressure tactics, harassment or unconscionable conduct in the Commercial Agents business.

Examples of harassment—1.Using, or getting a third party to use, threatening or intimidating language or behaviour towards a client or customer.2.Engaging in conduct that would make an ordinary person feel unwillingly compelled to comply with an agent’s request or demand

At the time of dealing with the customer (respondent) the Commercial Agent must disclose his/her name, who their employer is, the name of the client and the particulars of the debt, if that is the purpose of the contact[2].

It is an offence to make misrepresentations to either the client or the customer (respondent)[3]

When retaining a Commercial Agent, the agent is required by law[4] to enter into an agreement with the client. The failure to do so, could result in a maximum fine of $6000.00. The client agreement must set out minimally:

·         the fees, charges and any commission payable to the agent;

·         the expenses the agent is authorized to incur in connection with the appointment

·         the source and estimated amount or value of any rebate, discount, commission or benefit the agent may receive in relation to any expenses that the agent may incur

·         any conditions limitation or restriction on the performance of the service

The agent must give a copy of the signed client agreement to the client.

In the absence of the client agreement, an agent cannot sue for or receive fees for any work performed[5].

At Jacqdar, we have high standards and do not mislead our clients or customers. When we contact the customers, we :

·         state our purpose;

·         invite the customer to enter into an arrangement for the repayment of the debt;

·         attempt to work with the customer to enter into a repayment arrangement within their means (if that is possible);

·         do not exercise any high handed tactics.

We pride our selves on our ability to recover our clients money, not by being intimidating or harassing customers, but by:

·         issuing proceedings promptly and having them served swiftly; then

·         negotiating a resolution and if that is not possible;

·         following the proceedings to a conclusion

For any queries in relation to our acting on your behalf, please contact Darrin Edwards

A copy of the Code of Practise is available for purchase at GOPrint or for free by downloading it at the Department of Fair Trading.