Corporations Act 2001
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Hide history noteAny 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.
601SAA(2) [ Trustee company treated in the same manner as any other person]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.
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.
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.
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.
601SBA(2) [ When acting jointly]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.
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 (c) any investment made fromthe 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.
601SBB(1A)
An estate that is administered or managed by a trustee company, is 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.
601SBB(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 .
601SBB(3)
A licensed trustee company may charge a reasonable fee for providing an account under this section.
601SBB(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.
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.
601SBC(2) [ What trustee company must do]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) ).
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.
601SCA(2)
For the purposes of this Chapter, 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) but see also section 601SCAA , which deals with any inconsistencies in regulation between the Chapters.
601SCA(3)
A common fund may also include other money.
601SCA(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.
If, in relation to a common fund that is also a registered scheme, a provision of this Chapter or a regulation or other instrument made for the purposes of this Chapter is inconsistent with any of the following (a registered scheme provision ):
(a) a provision of Chapter 5C or a regulation or other instrument made for the purposes of that Chapter;
(b) a provision of Part 7.9 of Chapter 7 or a regulation or other instrument made for the purposes of that Part;
the registered scheme provision prevails to the extent of the inconsistency.
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) ).
601SCB(2) [ Accounts to be kept for each common fund]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) ).
601SCB(3) [ Express provision not to put estate money into a common fund]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) ).
The regulations may include provisions relating to the establishment or operation of common funds.
A licensed trustee company that operates a common fund that is not a registered scheme must not give a financial benefit in relation to the common fund to a related party.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
601SCD(2)
Subsection (1) does not apply if the financial benefit is given on terms that: (a) would be reasonable in the circumstances if the trustee company and the related party were dealing at arm ' s length; or (b) are less favourable to the related party than the terms referred to in paragraph (a).
601SCD(3)
In this section:
financial benefit
(Repealed by No 76 of 2023, s 3, Sch 2[107] (effective 20 October 2023).)
related party
has the meaning given by section
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, as if references in that section to a public company were references to a licensed trustee company.