Corporations Act 2001
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CCH Note:
SLI 2010 No 88, reg 4, contained the following transitional arrangements:
4 Transitional arrangements for charging of fees
]
(1)
For section 1496 of the Act, Part 5D.3 (other than Division 4) of the Act applies to a licensed trustee company as set out in this regulation.
(2)
If a licensed trustee company had an existing client at the commencement of Schedule 1 to these Regulations, the fee the company was entitled to charge under the relevant State law for traditional trustee company services to the client continues to apply to those services whether or not the relevant State law has since been repealed.
(3)
In this regulation, a relevant State law is a law of a State or Territory in force immediately before the commencement of Schedule 2 to the
Corporations Legislation Amendment (Financial Services Modernisation) Act 2009
that regulates the fees that may be charged by companies for the provision of traditional trustee company services.
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 made available to the public at all times on a website maintained by or on behalf of the trustee company; and
(b) is made available to the public 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) ).
[ CCH Note: See application provision under Pt 5D.3 heading.]
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 1A: Other provisions in this Part and in the regulations limit the ability of licensed trustee companies to increase fees.
Note 2: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
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. 601TAB(3) [ Client under a legal disability]
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.
[ CCH Note: See application provision under Pt 5D.3 heading.]
Subject to this Part, a licensed trustee company may charge fees for the provision of traditional trustee company services.
601TBA(2) [ Limit on fees]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 .
[ CCH Note: See application provision under Pt 5D.3 heading.]
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). 601TBB(2) [ Parties to fee agreement]
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.
[ CCH Note: See application provision under Pt 5D.3 heading.]
Nothing in the Part prevents a licensed trustee company from charging a fee permitted by subsection 601SBB(3) for the provision of an account.
[ CCH Note: See application provision under Pt 5D.3 heading.]
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.
[ CCH Note: See application provision under Pt 5D.3 heading.]
This section applies to the performance by a licensed trustee company of an estate management function relating to a particular estate.
601TBE(2) [ Fees payable out of capital or income of estate]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.
601TBE(3) [ Exceptions]Unless ASIC approves it under subsection (4):
(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.
ASIC may, on application in writing by a licensed trustee company, approve payment of a proposed fee that, if paid without the approval, would contravene subsection (3), if ASIC is satisfied that:
(a) the payment of the fee will not significantly affect the capital of the relevant estate or charitable trust concerned; and
(b) the fee is a fair reflection of the work and expertise required to perform the estate management function.
[ CCH Note: See application provision under Pt 5D.3 heading.]
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. 601TCA(2) [ Fees charged]
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.
601TCA(3) [ Div 2 not limited]This section does not limit anything in Division 2 .
[ CCH Note: See application provision under Pt 5D.3 heading.]
A licensed 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 an estate that is administered or managed by the trustee company.
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.
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
(c) if applicable, fees permitted by section 601TDF in respect of the preparation of returns etc. 601TDB(2) [ Div 2 not limited]
This section does not limit anything in Division 2 .
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.
601TDC(2) [ Commission to be charged once only]The capital commission must be charged only once during the period while the trustee company is trustee or manager of the charitable trust.
601TDC(3) [ Regulations relating to capital commission]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. 601TDC(4) Annual income commission.
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.
601TDC(5) [ Regulations relating to income commission]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
(c) apportionment of the amount of the commission for part-years.
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.
601TDD(2) [ Regulations]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
(c) apportionment of the amount of the management fee for part-years.
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.
601TDE(2) [ Regulations]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
(c) the apportionment of the common fund administration fee for part-years.
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.
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.
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.
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.
601TDI(2) [ Regulations]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
(c) the apportionment of the common fund administration fee for part-years.
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.
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.
601TEA(2) [ Application]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 . 601TEA(3) [ Factors the Court may consider]
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;
(c) the period during which the work was, or is likely to be, performed by the trustee company;
(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. 601TEA(4) [ How matter comes before Court]
The Court may exercise itspowers 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.
601TEA(5) [ Costs when fees reduced by more than 10%]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.
601TEA(6) [ Court's discretion for costs]Subject to subsection (5), all questions of costs of the review are in the discretion of the Court.
[ CCH Note: See application provision under Pt 5D.3 heading.]
(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. 601TEB(2) [ Director's fees]
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.
601TEB(3) [ Officer and estate not entitled to fees]Neither the officer nor the estate is entitled to receive the fees that the trustee company is entitled to receive under subsection (2).
[ CCH Note: See application provision under Pt 5D.3 heading.]