Corporations Act 2001

CHAPTER 5D - LICENSED TRUSTEE COMPANIES  

PART 5D.1 - PRELIMINARY  

SECTION 601RAA  

601RAA   MEANING OF FEES AND LAW - CHAPTER 5D  

In this Chapter:

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

law
means an Australian law and includes a rule of common law or equity.

SECTION 601RAB   MEANING OF TRUSTEE COMPANY AND CLIENT  

601RAB(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.

601RAB(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.

601RAB(2A)    

Before the Governor-General makes a regulation that includes a company in a list set out for the purposes of paragraph (2)(a) , the company must satisfy the Minister of the following:

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

(b)    that its purposes include:

(i) providing services of the kind referred to in paragraph 601RAC(1)(c) ; and

(ii) performing functions of a kind referred to in paragraph 601RAC(2)(b) and at least one other estate management function;

(c)    that it is, and will continue to be, capable of providing the services, and performing the functions, referred to in paragraph (b) of this subsection;

(d)    that it is a fit and proper person;

(e)    

that an unacceptable control situation does not exist in relation to it in relation to any person;

(f)    any other matter the Minister specifies by written notice to the company.

Note: Under Division 137 of the Criminal Code it may be an offence for a company to provide false or misleading information or documents to the Minister in purported compliance with this requirement.

601RAB(3)    

A client of a trustee company is a person to whom 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.

SECTION 601RAC   MEANING OF TRADITIONAL TRUSTEE COMPANY SERVICES AND ESTATE MANAGEMENTFUNCTIONS  

601RAC(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.

601RAC(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;

(c)    acting as agent, attorney or nominee;

(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.

601RAC(3)    
Subsections (1) and (2) do not apply to:

(a)    operating a registered scheme; or

(b)    

providing a custodial or depository service; or

(c)    acting as trustee for debenture holders under Chapter 2L ; 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; or

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

SECTION 601RAD   MEANING OF PERSON WITH A PROPER INTEREST  

601RAD(1)   [ " person with a proper interest " ]  

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;

(c) in the case of the estate of a deceased person:

(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.

601RAD(2)   [ Paramountcy of each paragraph or subparagraph]  

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

SECTION 601RAE   INTERACTION BETWEEN TRUSTEE COMPANY PROVISIONS AND STATE AND TERRITORY LAWS  

601RAE(1)   [ " trustee company provisions " ]  

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.

601RAE(2)   [ Kinds of State or Territory laws excluded]  

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.

601RAE(3)   [ Kinds of State or Territory laws not excluded]  

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.

601RAE(4)   [ Regulations]  

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.

601RAE(5)   [ Application of this Chapter]  

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.

601RAE(6)   [ Part 1.1A not to apply]  

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