Corporations Act 2001

CHAPTER 5D - LICENSED TRUSTEE COMPANIES  

PART 5D.6 - ASIC-APPROVED TRANSFERS OF ESTATE ASSETS AND LIABILITIES  

Division 1 - Preliminary  

SECTION 601WAA  

601WAA   MEANING OF ESTATE ASSETS AND LIABILITIES  

A company ' s estate assets and liabilities are assets (including assets in common funds) and liabilities of an estate, or incurred in relation to an estate, in relation to which the company was performing estate management functions, if the assets and liabilities were vested in or otherwise belonged to the company:

(a)    because of its performance of those functions; and

(b)    immediately before:

(i) if ASIC has under Part 7.6 cancelled the company ' s Australian financial services licence or varied the conditions of the company ' s Australian financial services licence so that the licence ceases to cover traditional trustee company services - the cancellation or variation; or

(ii) otherwise - a relevant certificate of transfer comes into force.

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

Division 2 - Transfer of estate assets and liabilities  

SECTION 601WBA   TRANSFER DETERMINATIONS  

601WBA(1)    

ASIC may, in writing, make a determination (a transfer determination ) that there is to be a transfer of estate assets and liabilities from a specified company (the transferring company ) to another specified company (the receiving company ) if:

(a)    

ASIC has under Part 7.6 cancelled the transferring company ' s Australian financial services licence or varied the conditions of the transferring company ' s Australian financial services licence so that the licence ceases to cover traditional trustee company services (the determination is a compulsory transfer determination ); or

(b)    the transferring company has applied in the prescribed form for a determination (the determination is a voluntary transfer determination ).

601WBA(2)    

ASIC may make a transfer determination only if:

(aa)    

for a compulsory transfer determination - the receiving company is a licensed trustee company or the Public Trustee of a State or Territory; and

(ab)    

for a voluntary transfer determination:

(i) the transferring company is a licensed trustee company or a company that was previously authorised as a trustee company under a law of a State or Territory; and

(ii) the receiving company is a licensed trustee company; and

(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) unless the receiving company is a Public Trustee - 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 or of which it is the Public Trustee.

601WBA(2A)    

Even if the Public Trustee of a State or Territory is not a company:

(a)    the Public Trustee may still be specified as a receiving company for the purposes of a compulsory transfer determination; and

(b)    references in this Part (however expressed) to:

(i) a company; or

(ii) the board of a company;

are taken to be references to that Public Trustee.

601WBA(3)    
The determination must include particulars of the transfer, including:

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

(b)    

for a compulsory transfer determination - 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; and

(d)    

for a voluntary transfer determination - that it will be a total transfer of the transferring company ' s estate assets and liabilities.

601WBA(4)    
The determination must include a statement of the reasons why the determination has been made.

601WBA(5)    
The determination is not a legislative instrument.

SECTION 601WBB   WHEN CONSENT OF RECEIVING COMPANY IS IN FORCE  

601WBB(1)   [ Consent in force until withdrawn]  

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.

601WBB(2)   [ Considerations for ASIC consent]  

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;

(c) any other relevant matter.

SECTION 601WBC  

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.

SECTION 601WBD   MINISTER'S POWER TO DECIDE THAT HIS OR HER CONSENT IS NOT REQUIRED  

601WBD(1)   [ Minister may determine consent is not required]  

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.

601WBD(2)   [ Regulations]  

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

601WBD(3)   [ When determination is a legislative instrument]  

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).

601WBD(4)   [ When determination is not a legislative instrument]  

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

SECTION 601WBE   DETERMINATIONS MAY IMPOSE CONDITIONS  

601WBE(1)   [ Kinds of conditions]  

The 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.

601WBE(2)   [ ASIC may vary or revoke condition]  

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.

601WBE(3)   [ Company may apply to have condition varied or revoked]  

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.

601WBE(4)   [ ASIC may approve the variation or revocation if appropriate]  

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.

601WBE(5)   [ Compliance with conditions]  

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) ).

601WBE(6)   [ Compliance with condition is not committing an offence against Act]  

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 .

SECTION 601WBF  

601WBF   NOTICE OF DETERMINATION  

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

SECTION 601WBG   CERTIFICATE OF TRANSFER  

601WBG(1)    
If:

(a) ASIC has made a transfer determination; and

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

(c) the consent referred to in subparagraph 601WBA(2)(b)(iii) has not been withdrawn under section 601WBB ;

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

601WBG(2)    
The certificate of transfer must:

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

(b) for a compulsory transfer determination - 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

(ca) for a voluntary transfer determination - state that the transfer is a total transfer; 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).

601WBG(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.

601WBG(4)    
The certificate comes into force in accordance with the statement included in the certificate as required by paragraph (2)(d).

601WBG(5)    
The certificate is not a legislative instrument.

SECTION 601WBH   NOTICE OF CERTIFICATE  

601WBH(1)    
ASIC must:

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

(b)    make a notifiable instrument setting out notice of the issue of the certificate; and

(c)    if regulations made for the purposes of this paragraph specify requirements for such notice to be published - publish the notice in accordance with those requirements.

601WBH(2)    

To avoid doubt, paragraph (1)(c) expresses a contrary intention for the purposes of subsection 11(4) of the Legislation Act 2003 .

SECTION 601WBI   TIME AND EFFECT OF TRANSFER  

601WBI(1)   [ Transfer]  

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.

601WBI(2)   [ Provisions of certificate]  

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.

SECTION 601WBJ  

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.

SECTION 601WBK   LIABILITIES FOR BREACH OF TRUST AND OTHER MATTERS NOT AFFECTED BY THIS PART  

601WBK(1)   [ Liabilities of company, officer or employee not affected]  

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

(c) any exercise of, or failure to exercise, any discretion.

601WBK(2)   [ Indemnity not affected]  

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  

SECTION 601WCA   CERTIFICATES EVIDENCING OPERATION OF ACT ETC.  

601WCA(1)    

A person authorised under section 601WCI , by signed writing, may certify that a specified asset or liability has become an asset or liability of the receiving company under this Part.

601WCA(2)    
For all purposes and in all proceedings, a certificate under subsection (1) is prima facie evidence of the matters certified.

SECTION 601WCB  

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 a person authorised under section 601WCI ; 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:

(c)    register the matter in the same manner as dealings in land or interests in land of that kind are registered; and

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

SECTION 601WCC   CERTIFICATES IN RELATION TO OTHER ASSETS  

601WCC(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 a person authorised under section 601WCI ; 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:

(c)    register the matter in the same manner as transactions in relation to assets of that kind are registered; and

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

601WCC(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.

SECTION 601WCD  

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.

SECTION 601WCE  

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.

SECTION 601WCF  

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) ).

SECTION 601WCG  

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) ).

SECTION 601WCH  

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.

SECTION 601WCI  

601WCI   AUTHORISATION TO PERFORM FUNCTIONS OR EXERCISE POWERS IN THIS PART  

ASIC may, in writing, authorise a person who is a member, or staff member, of ASIC to perform functions or exercise powers under section 601WCA , 601WCB or 601WCC .

Division 4 - Miscellaneous  

SECTION 601WDA   TRANSFERRING COMPANY REQUIRED TO CONTACT CERTAIN PERSONS  

Notice of cancellation or variation of Australian financial services licence

601WDA(1)    

If ASIC has under Part 7.6 cancelled a trustee company ' s Australian financial services licence, or varied the conditions of a trustee company ' s Australian financial services licence so that the licence ceases to cover traditional trustee company services, the trustee company must, as soon as practicable:

(a)    take all reasonable steps to contact the following persons and advise them of the cancellation or variation 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 on the trustee company ' s website (if any), and in another manner that is in accordance with subsection (4) .

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

Notice of compulsory transfer determination

601WDA(2)    

If a certificate of transfer for a compulsory transfer determination comes into force, the transferring 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) ).

601WDA(3)    

If a certificate of transfer for a voluntary transfer determination comes into force, the transferring company must, as soon as practicable, publish notice of the transfer of estate assets and liabilities on the transferring company ' s website (if any), and in another manner that is in accordance with subsection (4) .

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

Publishing notices

601WDA(4)    

A manner of publishing notice under paragraph (1)(b) or subsection (3) is in accordance with this subsection if the manner:

(a)    unless paragraph (b) applies - results in the notice being accessible to the public and reasonably prominent; or

(b)    if a determination in force under subsection (5) specifies one or more manners in which such a notice may be published - is so specified.

601WDA(5)    

For the purposes of paragraph (4)(b) , ASIC may, by legislative instrument, make a determination specifying one or more manners in which notice under paragraph (1)(b) or subsection (3) may be published.

601WDA(6)    

A manner of publication may be specified in the determination only if ASIC considers that the manner of publication would result in such a notice being accessible to the public and reasonably prominent.