THE CORPORATIONS LAW

CHAPTER 2L - DEBENTURES

PART 2L.1 - REQUIREMENT FOR TRUST DEED AND TRUSTEE

SECTION 260FC   WHO CAN BE A TRUSTEE  

260FC(1)  Who can be trustee.  

The trustee must be:

(a)  the Public Trustee of any State or Territory; or

(b)  a body corporate authorised by a law of any State or Territory to take in its own name a grant of probate of the will, or letters of administration of the estate, of a deceased person; or

(c)  a body corporate registered under the Life Insurance Act 1995; or

(d)  an Australian ADI; or

(e)  a body corporate, all of whose shares are held beneficially by a body corporate or bodies corporate of the kind referred to in paragraph (b), (c) or (d) if that body or those bodies:

(i) are liable for all of the liabilities incurred, or to be incurred, by the trustee as trustee; or

(ii) have subscribed for and beneficially hold shares in the trustee and there is an uncalled liability of at least $500,000 in respect of those shares that can only be called up if the trustee becomes an externally-administered body corporate (see section 254N); or

(f)  a body corporate approved by ASIC (see section 260MB).

Note:

Section 260GD provides that if the borrower becomes aware that the trustee cannot be a trustee, the trustee must be replaced.

260FC(2)  Circumstances in which a person cannot be trustee.  

A person may only be appointed or act as trustee (except to the extent provided for by section 260FD) if the appointment or acting will not result in a conflict of interest or duty. This subsection is not intended to affect any rule of law or equity.