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Corporations Legislation Amendment (Financial Services Modernisation) Act 2009 (108 of 2009)

Schedule 2 Trustee companies

Corporations Act 2001

9 After Chapter 5C

Insert:

Chapter 5D - Licensed trustee companies

Part 5D.1 - Preliminary

601RAA Definitions

In this Chapter:

client , in relation to a trustee company, has the meaning given by subsection 601RAB(3).

estate management functions has the meaning given by subsection 601RAC(2).

estate that is administered or managed , in relation to a trustee company, means all or any of the estate of a person (whether living or dead) that is administered or managed by the trustee company in the course of performing estate management functions.

fees means fees in the nature of remuneration (including commission).

law means a law of the Commonwealth or of a State or Territory, and includes a rule of common law or equity.

licensed trustee company means a trustee company that holds an Australian financial services licence covering the provision of one or more traditional trustee company services.

Note: Traditional trustee company services are financial services for the purpose of Chapter 7: see subsection 766A(1A).

person with a proper interest , in relation to an estate, has the meaning given by section 601RAD.

publish : if the regulations prescribe requirements to be complied with in relation to an obligation in a provision of this Part to publish something, publish (in that provision) means publish in accordance with those requirements.

traditional trustee company services has the meaning given by subsection 601RAC(1).

trustee company has the meaning given by section 601RAB.

will includes a codicil and any other testamentary writing.

601RAB Meaning of trustee company and client of trustee company

(1) A trustee company is a company:

(a) that is a corporation to which paragraph 51(xx) of the Constitution applies; and

(b) that is prescribed by the regulations as a trustee company for the purpose of this Act.

(2) For the purpose of paragraph (1)(b), companies may (for example) be prescribed:

(a) by setting out a list of companies in the regulations; or

(b) by providing a mechanism in the regulations for the determination of a list of companies.

(3) A client of a trustee company is a person to whom, within the meaning of Chapter 7, a financial service (being a traditional trustee company service) is provided by the trustee company.

Note: Regulations made for the purpose of subsection 766A(1B) may prescribe the person or persons to whom a class of traditional trustee company services is taken to be provided.

601RAC Meaning of traditional trustee company services and estate management functions

(1) The following are traditional trustee company services :

(a) performing estate management functions (see subsection (2));

(b) preparing a will, a trust instrument, a power of attorney or an agency arrangement;

(c) applying for probate of a will, applying for grant of letters of administration, or electing to administer a deceased estate;

(d) establishing and operating common funds;

(e) any other services prescribed by the regulations for the purpose of this paragraph.

(2) The following are estate management functions (whether provided alone or jointly with another person or persons):

(a) acting as a trustee of any kind, or otherwise administering or managing a trust;

(b) acting as executor or administrator of a deceased estate;

(d) acting as receiver, controller or custodian of property;

(e) otherwise acting as manager or administrator (including in the capacity as guardian) of the estate of an individual;

(f) acting in any other capacity prescribed by the regulations for the purpose of this paragraph.

(3) Subsections (1) and (2) do not apply to:

(a) operating a registered scheme; or

(b) providing a custodial or depository service (within the meaning of section 766E); or

(d) acting as a receiver or other controller of property of a corporation under Part 5.2; or

(e) acting as trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust (within the meaning of the Superannuation Industry (Supervision) Act 1993); or

(f) acting in any other capacity prescribed by the regulations for the purpose of this paragraph.

601RAD Meaning of person with a proper interest

(1) A person with a proper interest , in relation to an estate, includes (but is not limited to) the following:

(a) ASIC;

(b) in relation to a charitable trust:

(i) the settlor, or one of the settlors, of the trust; or

(ii) a person who, under the terms of the trust, has power to appoint or remove a trustee of the trust or to vary (or cause to be varied) any of the terms of the trust; or

(iii) a Minister of a State or Territory who has responsibilities relating to charitable trusts; or

(iv) a person who is named in the instrument establishing the trust as a person who may receive payments on behalf of the trust; or

(v) a person who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustee or trustees before distributing or applying money or other property for the purposes of the trust; or

(vi) a person of a class that the trust is intended to benefit;

(i) if the person died testate - a beneficiary under the person’s will; or

(ii) if the person died intestate - a person who, under a law of a State or Territory, has, or is entitled to, an interest in the deceased’s estate;

(d) in the case of any other trust:

(i) the settlor, or one of the settlors, of the trust; or

(ii) a person who, under the terms of the trust, has power to appoint or remove a trustee of the trust or to vary (or cause to be varied) any of the terms of the trust; or

(iii) a beneficiary of the trust;

(e) in relation to an application to a court relating to the estate - a person that the court considers, in the circumstances of the case, has a proper interest in the estate;

(f) a person prescribed by the regulations as having a proper interest in the estate;

(g) if a person covered by any of the above paragraphs is under a legal disability - an agent of the person.

(2) None of the paragraphs or subparagraphs of subsection (1) limits, or is limited by, any of the other paragraphs or subparagraphs of that subsection.

601RAE Interaction between trustee company provisions and State and Territory laws

(1) The trustee company provisions are:

(a) the provisions of this Chapter, and regulations or other instruments made for the purposes of this Chapter; and

(b) the provisions of Chapter 7, and regulations or other instruments made for the purposes of Chapter 7, as they apply in relation to financial services that are traditional trustee company services.

(2) Subject to subsections (3) and (4), the trustee company provisions are intended to apply to the exclusion of laws of a State or Territory of the following kinds:

(a) laws that authorise or license companies to provide traditional trustee company services generally (as opposed to laws that authorise or license companies to provide a particular traditional trustee company service);

(b) laws that regulate the fees that may be charged by companies for the provision of traditional trustee company services, and laws that require the disclosure of such fees;

(c) laws that deal with the provision of accounts by companies in relation to traditional trustee company services that they provide;

(d) laws that deal with the duties of officers or employees of companies that provide traditional trustee company services;

(e) laws that regulate the voting power that people may hold in companies that provide traditional trustee company services, or that otherwise impose restrictions on the ownership or control of companies that provide traditional trustee company services;

(f) laws (other than laws referred to in section 601WBC) that deal with what happens to assets and liabilities held by a company, in connection with the provision by the company of traditional trustee company services, if the company ceases to be licensed or authorised to provide such services.

(3) Subject to subsection (4), the trustee company provisions are not intended to apply to the exclusion of laws of a State or Territory that require a company to have (or to have staff who have) particular qualifications or experience if the company is to provide traditional trustee company services of a particular kind.

(4) The regulations may provide:

(a) that the trustee company provisions are intended to apply to the exclusion of prescribed State or Territory laws, or prescribed provisions of State or Territory laws; or

(b) that the trustee company provisions are intended not to apply to the exclusion of prescribed State or Territory laws, or prescribed provisions of State or Territory laws.

(5) The provisions of this Chapter have effect subject to this section.

Note: For example, section 601SAC (which provides that the powers etc. conferred by or under this Chapter are in addition to other powers etc.) is to be interpreted subject to this section.

(6) Part 1.1A does not apply in relation to the trustee company provisions.

Part 5D.2 - Powers etc. of licensed trustee companies

Division 1 - General provisions

601SAA Jurisdiction of courts not affected etc.

(1) Any inherent power or jurisdiction of courts in respect of the supervision of the performance of traditional trustee company services is not affected by anything in this Chapter.

(2) A licensed trustee company that is performing traditional trustee company services of a particular kind is subject in all respects to the same control and to removal or restraint from acting, and generally to the jurisdiction of courts, in the same manner as any other person who performs traditional trustee company services of that kind.

601SAB Regulations may prescribe other powers etc.

A licensed trustee company also has, in relation to the provision of traditional trustee company services, such other powers, functions, liabilities and obligations, and such privileges and immunities, as are prescribed by the regulations.

601SAC Powers etc. conferred by or under this Chapter are in addition to other powers etc.

The powers, functions, liabilities and obligations, and the privileges and immunities, conferred or imposed on licensed trustee companies by or under this Chapter are in addition to, and not in derogation of, any powers, functions, liabilities and obligations, and any privileges and immunities, conferred or imposed by any other law:

(a) on trustee companies; or

(b) on persons who perform estate management functions or who provide other traditional trustee company services.

Division 2 - Accounts

601SBA Licensed trustee company not required to file accounts

(1) A licensed trustee company, when acting alone in relation to any estate of a deceased person, is not required to file, or file and pass, accounts relating to the estate unless the Court, of its own motion or on application by or on behalf of a person with a proper interest in the estate, so orders.

(2) If a licensed trustee company is appointed and acts jointly with any other person in relation to any estate of a deceased person, the trustee company and that other person are not required to file, or file and pass, accounts relating to the estate unless:

(a) that other person intends to charge fees for acting in relation to the estate; or

(b) the Court, of its own motion or on application by or on behalf of a person with a proper interest in the estate, so orders.

601SBB Licensed trustee company may be required to provide account in relation to estate

(1) On application by a person with a proper interest in an estate that is administered or managed by a licensed trustee company, the trustee company must provide the person with an account of:

(a) the assets and liabilities of the estate; and

(b) the trustee company’s administration or management of the estate; and

(d) any distribution made from the estate; and

(e) any other expenditure (including fees and commissions) from the estate.

Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1)).

Note 2: Failure to comply with this subsection may also lead to the consequences set out in subsection (4) of this section.

(2) If:

(a) a licensed trustee company has provided an account to a person under this section; and

(b) the person applies for a further account within 3 months from the date on which the person was provided with the previous account;

the trustee company need not provide a further account in response to that application until the expiration of that period of 3 months.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2), see subsection 13.3(3) of the Criminal Code.

(3) A licensed trustee company may charge a reasonable fee for providing an account under this section.

(4) If a licensed trustee company fails to provide a proper account under this section, the Court may, on application by the person who sought the account or any other person with a proper interest in the estate, make any order that the Court considers appropriate, including an order requiring the preparation and delivery of proper accounts.

601SBC Court may order audit

(1) The Court may, on any application under section 601SBB, in addition to or in substitution for any account to be provided by the licensed trustee company under that section, order that a person named in the order must examine the accounts of the trustee company relating to the estate in respect of which the order is made.

(2) On the making of any such order, the trustee company must:

(a) give to the person named in the order a list of all the accounts kept by the company relating to the estate; and

(b) produce to the person, at an office of the trustee company at all reasonable times when required, all books in the company’s possession relating to the estate; and

(c) provide the person with all necessary information and all other necessary facilities for enabling the person to make the examination.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

Division 3 - Common funds

601SCA Common funds of licensed trustee companies

(1) A licensed trustee company may, for the purposes of investment, pool together into a fund or funds money ( estate money ) from 2 or more estates that are administered or managed by the trustee company in the performance of estate management functions.

(2) A fund into which money is pooled as mentioned in subsection (1) is a common fund .

Note: A common fund may also be regulated under Chapter 5C (if the fund constitutes a managed investment scheme).

(3) A common fund may also include other money.

(4) This section has effect subject to regulations made for the purpose of section 601SCC.

Note: For example, the regulations may limit the circumstances in which other money may be pooled together with estate money.

601SCB Obligations relating to common funds

(1) If a licensed trustee company establishes more than one common fund, each must be allocated an appropriate distinguishing number.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

(2) For each common fund, the licensed trustee company must keep accounts showing at all times the current amount for the time being at credit in the fund on account of each estate.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

(3) A licensed trustee company must not put estate money into a common fund if doing so is contrary to an express provision of the conditions subject to which the estate money is held by the trustee company.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

601SCC Regulations relating to establishment or operation of common funds

The regulations may include provisions relating to the establishment or operation of common funds.

Part 5D.3 - Regulation of fees charged by licensed trustee companies

Division 1 - Disclosure of fees

601TAA Schedule of fees to be published and available

A licensed trustee company must ensure that an up-to-date schedule of the fees that it generally charges for the provision of traditional trustee company services:

(a) is published at all times on a website maintained by or on behalf of the trustee company; and

(b) is available free of charge at offices of the trustee company during the usual opening hours of those offices.

Note 1: The schedule is of fees generally charged, and does not include fees that are agreed to etc. as mentioned in section 601TBB.

Note 2: Failure to comply with this section is an offence (see subsection 1311(1)).

601TAB Disclosure to clients of changed fees

(1) If, while a licensed trustee company continues to provide a particular traditional trustee company service to a client or clients, the trustee company changes the fees that it will charge for the provision of the service, the trustee company must, within 21 days of the change of fees taking effect, comply with paragraph (a) or (b) in relation to the client or each client:

(a) if the client has requested to be sent copies of changed fees - send the client a copy of the changed fees in accordance with subsection (2); or

(b) in any other case - directly notify the client, in writing, that the changed fees are available on the internet on a specified website maintained by or on behalf of the trustee company.

Note 1: Initial disclosure to a client of the fees that a trustee company will charge for the provision of a trustee company service will generally occur through the provision to the client of a Financial Services Guide under Part 7.7. However, this section is not limited just to situations where there has been an initial disclosure through a Financial Services Guide.

Note 2: Failure to comply with this subsection is an offence (see subsection 1311(1)).

(2) A copy of changed fees that is sent to a client under paragraph (1)(a) must be:

(a) an electronic copy, if that is what the client has requested; or

(b) a hard copy, in any other case.

(3) If a client to whom a traditional trustee company service is provided is under a legal disability, the following provisions have effect:

(a) a copy of changed fees required by paragraph (1)(a), or a notice required by paragraph (1)(b), must instead be given to an agent of the client;

(b) a request referred to in paragraph (1)(a) or (2)(a) may instead be made by an agent of the client.

Division 2 - General provisions about charging fees

601TBA Charging of fees for the provision of traditional trustee company services

(1) Subject to this Part, a licensed trustee company may charge fees for the provision of traditional trustee company services.

(2) If a provision of this Part limits the fees that a licensed trustee company may charge for the provision of a particular traditional trustee company service, the trustee company must not charge fees for that service in excess of that limit.

Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1)).

Note 2: Excess fees may also be recovered under section 601XAA.

601TBB Part does not prevent charging of fees as agreed etc.

(1) Nothing in this Part prevents a licensed trustee company from charging:

(a) any fees that a testator, in his or her will, has directed to be paid; or

(b) any fees that have been agreed on in accordance with subsection (2).

(2) An agreement referred to in paragraph (1)(b) that relates to the fees that may be charged by a licensed trustee company for the provision of a particular traditional trustee company service must be between the trustee company and:

(a) subject to paragraph (b) of this subsection - a person or persons who have authority to deal with the trustee company on matters relating to the provision of the service; or

(b) if the regulations prescribe the person or persons with whom the agreement must be made - that person or those persons.

601TBC Part does not prevent charging fee for provision of account

Nothing in the Part prevents a licensed trustee company from charging a fee permitted by subsection 601SBB(3) for the provision of an account.

601TBD Part does not prevent reimbursement

Nothing in this Part prevents the reimbursement to a licensed trustee company of all disbursements properly made by the trustee company in the provision of a traditional trustee company service.

601TBE Estate management functions: payment of fees out of estate

(1) This section applies to the performance by a licensed trustee company of an estate management function relating to a particular estate.

(2) Subject to subsection (3), fees charged by the trustee company, in accordance with this Part, for the performance of the function are payable to the trustee company out of the capital or income of the relevant estate.

(3) However:

(a) a management fee referred to in section 601TDD can only come out of the income of the relevant estate; and

(b) a common fund administration fee referred to in section 601TDE or 601TDI can only come out of the income received by the common fund on the assets of the charitable trust concerned that are included in the fund.

Division 3 - Fees otherwise than for being trustee or manager of a charitable trust

601TCA Fees otherwise than for being the trustee or manager of a charitable trust

(1) This section applies to a particular provision of a traditional trustee company service by a licensed trustee company, unless:

(a) the service consists of being the trustee or manager of a charitable trust (see Division 4); or

(b) the provision of the service started before the commencement of this section.

(2) The trustee company must not charge fees that are in excess of its schedule of fees that was most recently published as required by section 601TAA before the trustee company started to provide the service.

(3) This section does not limit anything in Division 2.

Division 4 - Fees for being trustee or manager of a charitable trust

Subdivision A - New client charitable trusts

601TDA Subdivision applies to new client charitable trusts

This Subdivision applies to a particular provision of a traditional trustee company service by a licensed trustee company if:

(a) the service consists of being the trustee or manager of a charitable trust; and

(b) the provision of the service started on or after the commencement of this section.

601TDB What the trustee company may charge

(1) For the provision of the service, the trustee company must only charge:

(a) either:

(i) a capital commission, and an income commission, as provided for in section 601TDC; or

(ii) a management fee as provided for in section 601TDD; and

(b) if applicable, common fund administration fees under section 601TDE; and

(2) This section does not limit anything in Division 2.

601TDC Option 1: capital commission and income commission

One-off capital commission

(1) The trustee company may charge a capital commission (GST inclusive) at a rate not exceeding 5.5% of the gross value of the charitable trust’s assets.

(2) The capital commission must be charged only once during the period while the trustee company is trustee or manager of the charitable trust.

(3) The regulations may make provision relating to the capital commission, including (but not limited to):

(a) the calculation of the commission or of the gross value of the charitable trust’s assets; and

(b) when, during the period referred to in subsection (2), the commission may be charged.

Annual income commission

(4) The trustee company may charge an annual income commission (GST inclusive) at a rate not exceeding 6.6% of the income received on account of the charitable trust’s assets.

(5) The regulations may make provision relating to the income commission, including (but not limited to):

(a) the calculation of the commission or of the income received on the charitable trust’s assets; and

(b) when, during a year, the commission may be charged; and

601TDD Option 2: annual management fee

(1) Instead of a capital commission and income commission under section 601TDC, the trustee company may charge an annual management fee (GST inclusive) at a rate not exceeding 1.056% of the gross value of the charitable trust’s assets.

(2) The regulations may make provision relating to the management fee, including (but not limited to):

(a) the calculation of the management fee or of the gross value of the charitable trust’s assets; and

(b) when, during a year, the management fee may be charged; and

601TDE Additional amount if trust money is in a common fund

(1) If any of the charitable trust’s assets are included in a common fund operated by the trustee company, the trustee company may charge an annual common fund administration fee (GST inclusive) not exceeding 1.1% of the gross value of the charitable trust’s assets in the fund.

(2) The regulations may make provision relating to the common fund administration fee, including (but not limited to):

(a) the calculation of the common fund administration fee or of the gross value of the charitable trust’s assets in the fund; and

(b) when, during a year, the common fund administration fee may be charged; and

601TDF Additional amount for preparation of returns etc.

The trustee company may charge a reasonable fee for work involved in the preparation and lodging of returns for the purpose of, or in connection with, assessments of any duties or taxes (other than probate, death, succession or estate duties) related to the trust estate of the charitable trust.

Subdivision B - Existing client charitable trusts

601TDG Subdivision applies to existing client charitable trusts

This Subdivision applies to a particular provision of a traditional trustee company service by a licensed trustee company if:

(a) the service consists of being the trustee or manager of a charitable trust; and

(b) the provision of the service started before the commencement of this section.

601TDH Trustee company not to charge more than was being charged before section commenced

Subject to section 601TDI and 601TDJ, the trustee company must not charge fees in excess of the fees than it could have charged in relation to the charitable trust immediately before the commencement of this section.

601TDI Additional amount if trust money is in a common fund

(2) The regulations may make provision relating to the common fund administration fee, including (but not limited to):

(a) the calculation of the common fund administration fee or of the gross value of the charitable trust’s assets in the fund; and

(b) when, during a year, the common fund administration fee may be charged; and

601TDJ Additional amount for preparation of returns etc.

Division 5 - Miscellaneous

601TEA Power of the Court with respect to excessive fees

(1) If the Court is of the opinion that fees charged by a licensed trustee company in respect of any estate are excessive, the Court may review the fees and may, on the review, reduce the fees.

(2) Subsection (1) does not apply to fees:

(a) that are charged as permitted by section 601TBB; or

(b) that relate to a charitable trust and that are charged as permitted by Subdivision A of Division 4.

(3) In considering whether fees are excessive, the Court may consider any or all of the following matters:

(a) the extent to which the work performed by the trustee company was reasonably necessary;

(b) the extent to which the work likely to be performed by the trustee company is likely to be reasonably necessary;

(d) the quality of the work performed, or likely to be performed, by the trustee company;

(e) the complexity (or otherwise) of the work performed, or likely to be performed, by the trustee company;

(f) the extent (if any) to which the trustee company was, or is likely to be, required to deal with extraordinary issues;

(g) the extent (if any) to which the trustee company was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;

(h) the value and nature of any property dealt with, or likely to be dealt with, by the trustee company;

(i) if the fees are ascertained, in whole or in part, on a time basis - the time properly taken, or likely to be properly taken, by the trustee company in performing the work;

(j) any other relevant matters.

(4) The Court may exercise its powers under subsection (1) either on its own motion or on the application by or on behalf of a person with a proper interest in the estate.

(5) If the fees are reduced by more than 10%, the trustee company must, unless the Court in special circumstances otherwise orders, pay the costs of the review.

(6) Subject to subsection (5), all questions of costs of the review are in the discretion of the Court.

601TEB Directors’ fees

(1) This section applies if:

(a) an estate that is administered or managed by a licensed trustee company has an interest in a corporation; and

(b) an officer of the trustee company, in his or her capacity as such an officer, acts as a director of the corporation for purposes connected with the administration or management of the estate.

(2) The trustee company is entitled to receive from the corporation (and to retain) any director’s fees that would be payable to the officer had he or she so acted otherwise than in his or her capacity as such an officer.

(3) Neither the officer nor the estate is entitled to receive the fees that the trustee company is entitled to receive under subsection (2).

Part 5D.4 - Duties of officers and employees of licensed trustee companies

601UAA Duties of officers of licensed trustee company

(1) An officer of a licensed trustee company must:

(a) act honestly; and

(b) exercise the degree of care and diligence that a reasonable person would exercise if they were in the officer’s position; and

(c) not make use of information acquired through being an officer of the trustee company for the purpose (or for purposes including the purpose) of:

(i) gaining an improper advantage for the officer or another person; or

(ii) causing detriment to the clients of the trustee company; and

(d) not make improper use of their position as an officer for the purpose (or for purposes including the purpose) of:

(i) gaining, directly or indirectly, an advantage for the officer or for any other person; or

(ii) causing detriment to the clients of the trustee company; and

(e) take all steps that a reasonable person would take, if they were in the officer’s position, to ensure that the trustee company complies, in relation to the provision of traditional trustee company services, with:

(i) this Act; and

(ii) any conditions imposed on the trustee company’s Australian financial services licence.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

(2) A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.

Note 1: Section 79 defines involved.

Note 2: This subsection is a civil penalty provision (see section 1317E).

(3) A duty of an officer of the trustee company under subsection (1) overrides any conflicting duty the officer has under Part 2D.1, but is subject to any conflicting duty the officer has under Part 5C.2.

(4) A reference in this section to the clients of a licensed trustee company is a reference to the clients, when viewed as a group.

601UAB Duties of employees of licensed trustee company

(1) An employee of a licensed trustee company must not:

(a) make use of information acquired through being an employee of the trustee company for the purpose (or for purposes including the purpose) of:

(i) gaining an improper advantage for the employee or another person; or

(ii) causing detriment to the clients of the trustee company; or

(b) make improper use of their position as an employee for the purpose (or for purposes including the purpose) of:

(i) gaining, directly or indirectly, an advantage for the employee or for any other person; or

(ii) causing detriment to the clients of the trustee company.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

(2) A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.

Note 1: Section 79 defines involved.

Note 2: This subsection is a civil penalty provision (see section 1317E).

(3) A duty of an employee of the trustee company under subsection (1) overrides any conflicting duty the employee has under Part 2D.1, but is subject to any conflicting duty the employee has under Part 5C.2.

(4) A reference in this section to the clients of a licensed trustee company is a reference to the clients, when viewed as a group.

Part 5D.5 - Limit on control of licensed trustee companies

Division 1 - 15% voting power limit

601VAA Meaning of unacceptable control situation

For the purposes of this Part, an unacceptable control situation exists in relation to a licensed trustee company and in relation to a particular person if the person’s voting power in the trustee company is more than:

(a) 15%; or

(b) if an approval of a higher percentage is in force under Division 2 in relation to the trustee company and in relation to the person - that higher percentage.

601VAB Acquisitions of shares

If:

(a) a person, or 2 or more persons under an arrangement, acquire shares in a body corporate; and

(b) the acquisition has the result, in relation to a licensed trustee company, that:

(i) an unacceptable control situation comes into existence in relation to the trustee company and in relation to a person; or

(ii) if an unacceptable control situation already exists in relation to the trustee company and in relation to a person - there is an increase in the voting power of the person in the trustee company;

the person or persons mentioned in paragraph (a) contravene this section.

Note: A contravention of this section is an offence (see subsection 1311(1)).

601VAC Remedial orders

(1) If an unacceptable control situation exists in relation to a licensed trustee company, the Court may make such orders as the Court considers appropriate for the purpose of ensuring that the unacceptable control situation ceases to exist.

(2) However, the Court may only make orders under this section on application by:

(a) the Minister; or

(b) ASIC; or

(d) a person who has any voting power in the trustee company; or

(e) a client of the trustee company.

(3) The Court’s orders may include:

(a) an order directing the disposal of shares; or

(b) an order restraining the exercise of any rights attached to shares; or

(c) an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by the person; or

(d) an order that any exercise of rights attached to shares be disregarded; or

(e) an order directing any person to do or refrain from doing a specified act, for the purpose of securing compliance with any other order made under this section; or

(f) an order containing such ancillary or consequential provisions as the Court thinks just.

(4) Subsection (3) does not, by implication, limit subsection (1).

(5) Before making an order under this section, the Court may direct that notice of the application be given to such persons as the Court thinks fit or be published in such manner as the Court thinks fit, or both.

(6) The Court may, by order:

(a) rescind, vary or discharge an order made by the Court under this section; or

(b) suspend the operation of such an order.

601VAD Injunctions

(1) If any conduct (including a refusal or failure to act) amounts or would amount to a contravention of this Part in relation to a particular licensed trustee company, the trustee company is taken, for the purposes of section 1324, to be a person whose interests are affected by the conduct.

(2) Subsection (1) does not, by implication, limit the class of persons whose interests are affected by the conduct.

(3) The Minister has the same powers as ASIC to apply for an injunction under section 1324 in relation to a contravention of this Part.

(4) The powers in sections 601VAC and 1324 do not, by implication, limit each other.

Division 2 - Approval to exceed 15% voting power limit

601VBA Application for approval to exceed 15% voting power limit

(1) A person may apply for approval to have voting power of more than 15% in a particular licensed trustee company by lodging with ASIC an application that:

(a) specifies the percentage of voting power (if any) the person currently has in the trustee company; and

(b) specifies the percentage of voting power the person is seeking approval to have in the trustee company; and

Note: For fees in respect of lodging applications, see Part 9.10.

(2) ASIC must give the application to the Minister as soon as possible.

601VBB Approval of application

(1) The Minister may grant the application if the Minister is satisfied that it would be in the interests of the licensed trustee company and its clients for the application to be granted.

(2) If the Minister grants the application, the Minister must:

(a) give written notice of the approval to the applicant; and

(b) specify the percentage of the voting power the Minister approves the applicant having in the licensed trustee company (which may or may not be the percentage the applicant applied for); and

(i) specify the period during which the approval remains in force; or

(ii) specify that the approval remains in force indefinitely.

(3) If the Minister refuses the application, the Minister must give written notice of the refusal to the applicant.

(4) As soon as practicable, the Minister must arrange for a copy of a notice of approval under this section to be:

(a) published in the Gazette; and

(b) given to the licensed trustee company concerned.

601VBC Duration of approval

(1) An approval under section 601VBB remains in force:

(a) if the notice of approval specifies a period during which the approval remains in force - until the end of that period, or if the Minister extends that period, until the end of that extended period; or

(b) otherwise - indefinitely.

Extension of approval

(2) A person who holds an approval under section 601VBB that is in force for a specified period may apply to extend that period by lodging with ASIC an application that sets out the person’s reasons for making the application.

Note: For fees in respect of lodging applications, see Part 9.10.

(3) ASIC must give the application to the Minister as soon as possible.

(4) The Minister may grant the application if the Minister is satisfied that it would be in the interests of the licensed trustee company and its clients for the application to be granted.

(5) If the Minister grants the application, the Minister must:

(a) give written notice of the extension to the applicant; and

(b) specify the extended period during which the approval remains in force (which may or may not be the period the applicant applied for).

(6) If the Minister refuses the application, the Minister must give written notice of the refusal to the applicant.

(7) As soon as practicable, the Minister must arrange for a copy of a notice of extension under this section to be:

(a) published in the Gazette; and

(b) given to the licensed trustee company concerned.

601VBD Conditions of approval

(1) An approval under section 601VBB is subject to such conditions (if any) as are specified in the notice of approval.

(2) The Minister may, by written notice given to a person who holds an approval under section 601VBB:

(a) impose one or more conditions or further conditions to which the approval is subject; or

(b) revoke or vary any condition:

(i) imposed under paragraph (a); or

(ii) specified in the notice of approval.

(3) The Minister’s power under subsection (2) may be exercised:

(a) on the Minister’s own initiative; or

(b) on application by the person who holds the approval.

(4) An application made by a person under paragraph (3)(b) must be lodged with ASIC and must set out the person’s reasons for making the application.

Note: For fees in respect of lodging applications, see Part 9.10.

(5) ASIC must give the application to the Minister as soon as possible.

(6) If the Minister refuses an application under paragraph (3)(b), the Minister must give written notice of the refusal to the applicant.

(7) As soon as practicable, the Minister must arrange for a copy of a notice under subsection (2) to be:

(a) published in the Gazette; and

(b) given to the licensed trustee company concerned.

(8) A person who holds an approval under section 601VBB must give written notice to ASIC as soon as practicable after they become aware that they have breached a condition to which the approval is subject.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

601VBE Varying percentage approved

Application by holder of approval

(1) A person who holds an approval under section 601VBB may apply to vary the percentage specified in the approval by lodging with ASIC an application that:

(a) specifies the percentage of the voting power the person currently has in the licensed trustee company concerned; and

(b) specifies the percentage of the voting power the person is seeking approval to have in the trustee company; and

Note: For fees in respect of lodging applications, see Part 9.10.

(2) ASIC must give the application to the Minister as soon as possible.

(3) The Minister may grant the application if the Minister is satisfied that it would be in the interests of the licensed trustee company and its clients for the application to be granted.

(4) If the Minister grants the application, the Minister must:

(a) give written notice of the variation to the applicant; and

(b) specify the variation granted (which may or may not be the variation the applicant applied for).

(5) If the Minister refuses an application, the Minister must give written notice of the refusal to the applicant.

Minister’s own initiative

(6) The Minister may, by written notice given to a person who holds an approval under section 601VBB, vary the percentage specified in the approval if the Minister is satisfied that the variation would be in the interests of the licensed trustee company and its clients.

Percentage varied upwards

(7) If the Minister varies a percentage upwards, the variation takes effect on the day the notice of variation is given.

Percentage varied downwards

(8) If the Minister varies a percentage downwards, the variation takes effect on the day specified in the notice of variation. The specified day must be a day at least 90 days after the day on which the notice is given.

Notification of variation

(9) As soon as practicable, the Minister must arrange for a copy of a notice of variation under this section to be:

(a) published in the Gazette; and

(b) given to the licensed trustee company concerned.

601VBF Revoking an approval

(1) The Minister may, by written notice given to a person who holds an approval under section 601VBB in relation to a licensed trustee company, revoke the approval if:

(a) the Minister is satisfied that it would be in the interests of the trustee company and its clients for the approval to be revoked; or

(b) the Minister is satisfied that an unacceptable control situation exists in relation to the trustee company and in relation to the person; or

(2) The revocation takes effect on the day specified in the notice of revocation. The specified day must be a day at least 90 days after the day on which the notice is given.

(3) If a person who holds an approval under section 601VBB applies to the Minister for revocation of the approval, the Minister must, by written notice given to the person, revoke the approval. The revocation takes effect on the day specified in the notice of revocation.

(4) As soon as practicable, the Minister must arrange for a copy of a notice of revocation under this section to be:

(a) published in the Gazette; and

(b) given to the licensed trustee company concerned.

601VBG Minister may require further information from applicants

(1) If a person has made an application under this Division, the Minister may, by written notice given to the person, require the person to give the Minister, within a specified period, further information about the application.

(2) The Minister may refuse to consider the application until the person gives the Minister the information.

601VBH Minister may seek views of licensed trustee company and its clients

For the purpose of making a decision under this Division (whether or not in response to an application) in relation to a licensed trustee company, the Minister may seek the views of the trustee company and its clients.

601VBI Time limit for Minister’s decision

(1) The Minister must make a decision on an application under this Division within 30 days after receiving the application.

(2) However, before the end of the 30 days, the Minister may decide to extend the period for considering the application until the end of 60 days after the application was received.

(3) If the Minister has not made a decision within the 30 days (or the 60 days, if subsection (2) applies), the Minister is taken to have granted whatever was applied for. As soon as practicable after that happens, the Minister must arrange for a notice to that effect to be:

(a) published in the Gazette; and

(b) given to the licensed trustee company concerned.

(4) The time for making the decision stops running if the Minister gives a notice under subsection 601VBG(1) in relation to the application, and does not start again until the notice is complied with.

(5) The time limit in this section does not apply to an application under section 601VBB or 601VBE if an unacceptable control situation exists in relation to the applicant and in relation to the relevant licensed trustee company at any time before the Minister makes a decision.

Division 3 - Other matters

601VCA Acquisition of property

(1) The Court must not make an order under section 601VAC if:

(a) the order would result in the acquisition of property from a person otherwise than on just terms; and

(b) the order would be invalid because of paragraph 51(xxxi) of the Constitution.

(2) Section 1350 does not apply in relation to the making of an order under section 601VAC.

(3) In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

601VCB Interests of clients to be viewed as a group

A reference in this Part to the interests of the clients of a licensed trustee company is a reference to the interests of the clients, when viewed as a group.

601VCC Anti-avoidance

(1) If:

(a) one or more persons enter into, begin to carry out or carry out a scheme; and

(b) it would be concluded that the person, or any of the persons, who entered into, began to carry out or carried out the scheme or any part of the scheme did so for the sole or dominant purpose of avoiding the application of any provision of Division 1 in relation to any person or persons (whether or not mentioned in paragraph (a)); and

(c) as a result of the scheme or a part of the scheme, a person (the controller ) increases the controller’s voting power in a licensed trustee company;

the Minister may give the controller a written direction to cease having that voting power within a specified time.

(2) A person who is subject to a direction under subsection (1) must comply with the direction.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

(3) A direction under subsection (1) is not a legislative instrument.

(4) In this section:

increase voting power includes increasing it from a starting point of nil.

Part 5D.6 - Consequences of cancellation of Australian financial services licence

Division 1 - Preliminary

601WAA Definitions

(1) In this Part:

asset means property, or a right, of any kind, and includes:

(a) any legal or equitable estate or interest (whether present or future, vested or contingent, tangible or intangible, in real or personal property) of any kind; and

(b) any chose in action; and

(c) any right, interest or claim of any kind including rights, interests or claims in or in relation to property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing); and

(d) any CGT asset within the meaning of the Income Tax Assessment Act 1997.

authorised ASIC officer , when used in a particular provision of this Part, means a person authorised under subsection (2) to perform or exercise the functions or powers of an authorised ASIC officer under that provision.

cancel , in relation to a licence, means:

(a) cancel the licence under Part 7.6; or

(b) vary the conditions of the licence under Part 7.6 so that the licence ceases to cover traditional trustee company services.

certificate of transfer has the meaning given by subsection 601WBG(1).

compulsory transfer determination has the meaning given by subsection 601WBA(1).

estate assets and liabilities , in relation to a trustee company that has had its licence cancelled, means assets (including assets in common funds) and liabilities:

(a) of an estate, or incurred in relation to an estate, in relation to which the trustee company was (before cancellation of its licence) performing estate management functions; and

(b) that, immediately before the cancellation:

(i) were vested in the trustee company because it was performing those functions; or

(ii) were otherwise assets and liabilities of the trustee company because of its performance of those functions.

Note: This Part does not apply to liabilities for breach of trust etc.: see section 601WBK.

interest , in relation to land, includes:

(a) a legal or equitable estate or interest in the land; or

(b) a right, power or privilege over, or in relation to, the land.

liability includes a duty or obligation of any kind (whether arising under an instrument or otherwise, and whether actual, contingent or prospective).

licence means an Australian financial services licence that is held by a trustee company and that covers the provision of one or more traditional trustee company services.

receiving company has the meaning given by subsection 601WBA(1).

transferring company has the meaning given by subsection 601WBA(1).

(2) ASIC may, in writing, authorise a person who is a member of ASIC, or of its staff, to perform or exercise the functions or powers of an authorised ASIC officer under a particular provision of this Part.

Division 2 - Transfer of estate assets and liabilities

601WBA Compulsory transfer determinations

(1) If ASIC cancels the licence of a trustee company (the transferring company ), ASIC may, in writing, make a determination (a compulsory transfer determination ) that there is to be a transfer of estate assets and liabilities from the transferring company to another licensed trustee company (the receiving company ).

(2) ASIC may make a compulsory transfer determination only if:

(a) either:

(i) the Minister has consented to the transfer; or

(ii) the Minister’s consent to the transfer is not required (see section 601WBD); and

(b) ASIC is satisfied that:

(i) the transfer is in the interests of clients of the transferring company (when viewed as a group); and

(ii) the transfer is in the interests of clients of the receiving company (when viewed as a group); and

(iii) the board of the receiving company has consented to the transfer; and

(iv) legislation to facilitate the transfer that satisfies the requirements of section 601WBC has been enacted in the State or Territory in which the transferring company is registered and the State or Territory in which the receiving company is registered.

(3) The determination must include particulars of the transfer, including:

(a) the names of the transferring company and the receiving company; and

(b) whether it will be a total transfer or a partial transfer of the transferring company’s estate assets and liabilities; and

(c) if it will be a partial transfer - an indication of the part of the transferring company’s estate assets and liabilities that is to be transferred.

(4) The determination must include a statement of the reasons why the determination has been made.

(5) The determination is not a legislative instrument.

601WBB When consent of receiving company is in force

(1) The consent referred to in subparagraph 601WBA(2)(b)(iii) remains in force until it is withdrawn by the receiving company’s board with the agreement of ASIC.

(2) ASIC may agree to the consent being withdrawn if ASIC considers it appropriate to allow the consent to be withdrawn having regard to any of the following:

(a) circumstances that have arisen since the consent was given;

(b) circumstances that were in existence at or before the time when the consent was given but that were not known to the receiving company’s board when it gave its consent;

601WBC Complementary State or Territory legislation

State or Territory legislation referred to in subparagraph 601WBA(2)(b)(iv) must include provision to ensure that, when a certificate of transfer comes into force under this Division, the receiving company is taken to be the successor in law in relation to estate assets and liabilities of the transferring company, to the extent of the transfer. In particular, the legislation must provide that:

(a) assets of the transferring company become assets of the receiving company, to the extent of the transfer; and

(b) liabilities of the transferring company become liabilities of the receiving company, to the extent of the transfer; and

(c) the duties, obligations, immunities, rights and privileges applying to the transferring company apply to the receiving company, to the extent of the transfer; and

(d) if the certificate of transfer includes provisions of a kind referred to in subsection 601WBG(3) specifying:

(i) that particular things are to happen or are taken to be the case - those things are taken to happen, or to be the case, in accordance with those provisions; or

(ii) a mechanism for determining things that are to happen or are taken to be the case - things determined in accordance with that mechanism are taken to happen, or to be the case, as determined in accordance with that mechanism.

601WBD Minister’s power to decide that his or her consent is not required

(1) The Minister’s consent to the transfer of estate assets and liabilities is not required if the Minister has, in writing, determined that his or her consent is not required in relation to:

(a) the transfer; or

(b) a class of transfers that includes the transfer.

(2) The regulations may prescribe criteria to be taken into account by the Minister in deciding whether to make a determination.

(3) A determination is a legislative instrument if it is expressed to apply in relation to a class of transfers (whether or not it is also expressed to apply in relation to one or more transfers identified otherwise than by reference to membership of a class).

(4) If subsection (3) does not apply to a determination, the determination is not a legislative instrument.

601WBE Determinations may impose conditions

(1) The compulsory transfer determination may impose conditions of either or both of the following kinds:

(a) conditions to be complied with by the transferring company or the receiving company before a certificate of transfer is issued in relation to the transfer of estate assets and liabilities;

(b) conditions to be complied with by the transferring company or the receiving company after a certificate of transfer has been issued or has come into force in relation to the transfer of estate assets and liabilities.

(2) ASIC may, by notice in writing given to the transferring company or the receiving company, vary or revoke any condition of a determination if ASIC is satisfied that the variation or revocation is appropriate.

(3) The transferring company or the receiving company may apply in writing to ASIC to have a condition of a kind referred in paragraph (1)(b) that applies to it varied or revoked.

(4) ASIC may, by notice in writing given to the company that made the application, approve the variation or revocation if ASIC is satisfied that the variation or revocation is appropriate. A variation or revocation that is approved by ASIC has effect accordingly.

(5) The transferring company or the receiving company must comply with any conditions that are imposed under subsection (1) as conditions to be complied with by that company.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

(6) The transferring company or the receiving company does not commit an offence against this Act merely because the company is complying with a condition imposed under subsection (1).

Note: A defendant bears an evidential burden in relation to the matter in subsection (6), see subsection 13.3(3) of the Criminal Code.

601WBF Notice of determination

ASIC must give a copy of the compulsory transfer determination to the transferring company and the receiving company.

601WBG Certificate of transfer

(1) If:

(a) ASIC has made a compulsory transfer determination; and

(b) ASIC considers that the transfer should go ahead; and

ASIC must, in writing, issue a certificate (a certificate of transfer ) stating that the transfer is to take effect.

(2) The certificate of transfer must:

(a) include the names of the transferring company and the receiving company; and

(b) state whether the transfer is a total transfer or a partial transfer; and

(c) if the transfer is a partial transfer - include, or have attached to it, a list of the estate assets and liabilities that are being transferred to the receiving company; and

(d) state when the certificate is to come into force (either by specifying a date as the date it comes into force, or by specifying that the date it comes into force is a date worked out in accordance with provisions of the certificate).

(3) The certificate may include provisions specifying, or specifying a mechanism for determining, other things that are to happen, or that are taken to be the case, in relation to assets and liabilities that are to be transferred, or in relation to the transfer of estate assets and liabilities that is to be effected, whether the transfer is total or partial.

(4) The certificate comes into force in accordance with the statement included in the certificate as required by paragraph (2)(d).

(5) The certificate is not a legislative instrument.

601WBH Notice of certificate

ASIC must:

(a) give a copy of the certificate of transfer to the transferring company and the receiving company; and

(b) publish notice of the issue of the certificate.

601WBI Time and effect of compulsory transfer

(1) When a certificate of transfer comes into force, the receiving company becomes the successor in law of the transferring company in relation to estate assets and liabilities of the transferring company, to the extent of the transfer. In particular:

(a) if the transfer is a total transfer - all the estate assets and liabilities of the transferring company, wherever those assets and liabilities are located, become assets and liabilities of the receiving company (in the same capacity as they were assets and liabilities of the transferring company) without any transfer, conveyance or assignment; and

(b) if the transfer is a partial transfer - all the estate assets and liabilities included in the list referred to in paragraph 601WBG(2)(c), wherever those assets and liabilities are located, become assets and liabilities of the receiving company (in the same capacity as they were assets and liabilities of the transferring company) without any transfer, conveyance or assignment; and

(c) to the extent of the transfer, the duties, obligations, immunities, rights and privileges applying to the transferring company apply to the receiving company.

(2) If the certificate includes provisions of a kind referred to in subsection 601WBG(3):

(a) if the provisions specify that particular things are to happen or are taken to be the case - those things are, by force of this section, taken to happen, or to be the case, in accordance with those provisions; and

(b) if the provisions specify a mechanism for determining things that are to happen or are taken to be the case - things determined in accordance with the mechanism are, by force of this section, taken to happen, or to be the case, as determined in accordance with that mechanism.

601WBJ Substitution of trustee company

When a certificate of transfer comes into force, any appointment or nomination of the transferring company to a particular capacity (for example, as trustee, executor or administrator) in relation to the transferred estate assets and liabilities is taken to be an appointment or nomination of the receiving company to that capacity in relation to those assets and liabilities.

601WBK Liabilities for breach of trust and other matters not affected by this Part

(1) Nothing in this Part applies to or affects liabilities of the transferring company, or of an officer or employee of the transferring company, for:

(a) any breach of trust; or

(b) any other misfeasance or nonfeasance; or

(2) Nothing in this Part affects any rights of the transferring company, or of an officer or employee of the transferring company, to indemnity in respect of such liabilities.

Division 3 - Other matters related to the transfer of estate assets and liabilities

601WCA Certificates evidencing operation of Act etc.

(1) An authorised ASIC officer, by signed writing, may certify that a specified asset or liability has become an asset or liability of the receiving company under this Part.

(2) For all purposes and in all proceedings, a certificate under subsection (1) is prima facie evidence of the matters certified.

601WCB Certificates in relation to land and interests in land

If:

(a) the receiving company becomes, under this Part, the owner of land, or of an interest in land, that is situated in a State or Territory; and

(b) there is lodged with the Registrar of Titles or other appropriate officer of the State or Territory in which the land is situated a certificate that:

(i) is signed by an authorised ASIC officer; and

(ii) identifies the land or interest; and

(iii) states that the receiving company has, under this Part, become the owner of that land or interest;

the officer with whom the certificate is lodged may:

(d) deal with, and give effect to, the certificate.

601WCC Certificates in relation to other assets

(1) If:

(a) an asset (other than land or an interest in land) becomes, under this Part, an asset of the receiving company; and

(b) there is lodged with the person or authority who has, under a law of the Commonwealth, a State or a Territory, responsibility for keeping a register in respect of assets of that kind a certificate that:

(i) is signed by an authorised ASIC officer; and

(ii) identifies the asset; and

(iii) states that the asset has, under this Part, become an asset of the receiving company;

that person or authority may:

(d) deal with, and give effect to, the certificate.

(2) This section does not affect the operation of:

(a) other provisions of this Act; or

(b) if the regulations prescribe provisions of one or more other Acts - those provisions of those Acts.

601WCD Documents purporting to be certificates

A document purporting to be a certificate given under this Division is, unless the contrary is established, taken to be such a certificate and to have been properly given.

601WCE Construction of references to transferring company

From when a certificate of transfer comes into force, in any instrument of any kind, a reference to the transferring company, in relation to assets or liabilities transferred under this Part, is taken to be a reference to the receiving company.

601WCF Income or other distribution received by transferring company

The transferring company must promptly account to the receiving company for any income or other distribution received by the transferring company after a certificate of transfer comes into force, if the income or distribution arises from assets transferred to the receiving company under this Part.

Note: Failure to comply with this section is an offence (see subsection 1311(1)).

601WCG Access to books

The transferring company must, at the request of the receiving company, give the receiving company access to all books in its possession that relate to assets or liabilities transferred under this Part.

Note: Failure to comply with this section is an offence (see subsection 1311(1)).

601WCH Minister or ASIC may seek views of trustee company and its clients

For the purpose of deciding whether to exercise powers under this Part, the Minister or ASIC may seek the views of a trustee company or its clients in relation to the possible exercise of the powers.

Division 4 - Miscellaneous

601WDA Transferring company required to contact certain persons

(1) If the licence of a trustee company is cancelled, the trustee company must, as soon as practicable:

(a) take all reasonable steps to contact the following persons and advise them of the cancellation of the licence:

(i) all persons who the trustee company is aware have executed and lodged instruments, such as wills, that have not yet come into effect, but will potentially lead to estate assets and liabilities being held by the trustee company;

(ii) all persons who the trustee company is aware have appointed the trustee company as trustee or to some other capacity; and

(b) publish notice of the cancellation of the licence.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

(2) If a certificate of transfer comes into force, the trustee company must, as soon as practicable, take all reasonable steps to contact the persons referred to in subsection (1) and advise them of the transfer of estate assets and liabilities.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

Part 5D.7 - Effect of contraventions

601XAA Civil liability of licensed trustee companies

(1) A person who suffers loss or damage because of conduct of a licensed trustee company that contravenes a provision of this Chapter may recover the amount of the loss or damage by action against the trustee company, whether or not the trustee company has been convicted of an offence, or has had a civil penalty order made against it, in respect of the contravention.

(2) Without limiting subsection (1), if:

(a) a licensed trustee company charges a person a fee in excess of fees permitted to be charged by this Chapter; and

(b) the person pays the fee;

the amount of the excess is a loss that is recoverable by the person under subsection (1).

(3) An action under subsection (1) must be begun within 6 years after the cause of action arises.

(4) This section does not affect any liability that a person has under other provisions of this Act or under other laws.

Part 5D.8 - Exemptions and modifications

601YAA Exemptions and modifications by ASIC

(1) ASIC may:

(a) exempt a person or class of persons, or an estate or class of estates, from all or specified provisions of this Chapter; or

(b) declare that this Chapter applies to a person or class of persons, or an estate or class of estates, as if specified provisions were omitted, modified or varied as specified in the declaration.

(2) An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.

(3) An exemption or declaration is a legislative instrument if it is expressed to apply in relation to a class of persons or a class of estates (whether or not it is also expressed to apply in relation to one or more persons or estates identified otherwise than by reference to membership of a class).

(4) If subsection (3) does not apply to an exemption or declaration, the exemption or declaration must be in writing and ASIC must publish notice of it in the Gazette. The exemption or determination is not a legislative instrument.

(5) If conduct (including an omission) of a person would not have constituted an offence if a particular declaration under paragraph (1)(b) had not been made, that conduct does not constitute an offence unless, before the conduct occurred (in addition to complying with the requirements of the Legislative Instruments Act 2003 (if the declaration is of a kind referred to in subsection (3)), or with the gazettal requirement of subsection (4), as the case may be):

(a) the text of the declaration was made available by ASIC on the internet; or

(b) ASIC gave written notice setting out the text of the declaration to the person.

In a prosecution for an offence to which this subsection applies, the prosecution must prove that paragraph (a) or (b) was complied with before the conduct occurred.

(6) For the purpose of this section, the provisions of this Chapter include:

(a) regulations or other instruments made for the purposes of this Chapter; and

(b) definitions in this Act or the regulations, as they apply to references in:

(i) this Chapter; or

(ii) regulations or other instruments made for the purposes of this Chapter; and

601YAB Exemptions and modifications by regulations

(1) The regulations may:

(a) exempt a person or class of persons, or an estate or class of estates, from all or specified provisions of this Chapter; or

(b) provide that this Chapter applies to a person or class of persons, or an estate or class of estates, as if specified provisions were omitted, modified or varied as specified in the declaration.

(2) For the purpose of this section, the provisions of this Chapter include:

(a) regulations or other instruments made for the purposes of this Chapter; and

(b) definitions in this Act or the regulations, as they apply to references in:

(i) this Chapter; or

(ii) regulations or other instruments made for the purposes of this Chapter; and

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