Trustee Companies Legislation Amendment Act 2010

Trustee Companies Legislation Amendment Act 2010

No. 17 of 2010

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

Part 2—Trustee Companies Act 1984

3Definitions

4Repeal of section 5

5Repeal of Part II

6Appointment as trustee etc.

7Repeal of sections 19 and 20

8Repeal of Part IV

9New sections 26A and 26B inserted

26ACompulsory transfer determinations

26BExemption from State tax

10Repeal of sections 27 to 35

11Repeal of Part VI

12Repeal of Part VII

13Repeal of Part IX

14Repeal of sections 50 to 53 and 54A

15New Part XI inserted

Part XI—TRANSITIONAL PROVISIONS

56Regulations of a savings or transitional nature

57Court may review rate of commission

58Order for account and audit of estate

59Order to restrain disposal of shares

60Order for winding up of trustee company

61General transitional provision

16Repeal of Schedule 2

PART 3—Administration and Probate Act 1958

17Definitions

18Executors' etc. commission

Part 4—Guardianship and Administration
Act1986

19Remuneration of professional administrator

Part 5—State Trustees (State Owned Company)
Act 1994

20New section 20A inserted

20AContinued application of the Trustee Companies
Act 1984

21Repeal of sections 24, 25A, 27, 28, 29 and 30

Part 6—Repeal of Amending Act

22Repeal of Act

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Endnotes

SectionPage

Victoria

SectionPage

Trustee Companies Legislation Amendment Act 2010[†]

No. 17 of 2010

[Assented to 11 May 2010]

Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010

The Parliament of Victoriaenacts:

Part 6—Repeal of Amending Act

Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010

Part 1—Preliminary

1Purpose

The purpose of this Act is to amend—

(a)the Trustee Companies Act 1984 to facilitate the regulation of trustee companies by the Commonwealth; and

(b)the State Trustees (State Owned Company) Act 1994 to provide for the continued operation of the Trustee Companies Act 1984 to State Trustees; and

(c)the Administration and Probate Act 1958 and Guardianship and Administration Act 1986 as a consequence of the transfer of the regulation of trustee companies to the Commonwealth.

2Commencement

s. 2

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 January 2011, it comes into operation on that day.

______

Part 2—Trustee Companies Act 1984

3Definitions

See:
Act No.
10168.
Reprint No. 5
as at
21 May 2009
and amending
Act No.
68/2009.
LawToday:
www.
legislation.
vic.gov.au

s. 3

(1)In section 4(1) of the Trustee Companies Act 1984—

(a)the definitions of authorised deposit-taking institution, Commissioner, corporation, financial institution, insurance company, nominee corporation, reserve fund, related corporation, subordinated loan and voting shares are repealed;

(b)insert the following definition—

"State Trustees has the same meaning as in the State Trustees (State Owned Company) Act 1994;".

(c)for the definition of trustee companysubstitute—

"trustee company means—

(a)a licensed trustee company within the meaning of section 601RAA of the Corporations Act; or

(b)State Trustees;".

(2)Section 4(2), (3) and (4) of the Trustee Companies Act 1984is repealed.

4Repeal of section 5

Section 5 of the Trustee Companies Act 1984is repealed.

5Repeal of Part II

Part II of the Trustee Companies Act 1984is repealed.

6Appointment as trustee etc.

s. 6

(1) In section 13(1) of the Trustee Companies Act 1984omit "(including the reserve fund)".

(2)Section 13(2) of the Trustee Companies Act 1984 is repealed.

7Repeal of sections 19 and 20

Sections 19 and 20 of the Trustee Companies Act 1984 are repealed.

8Repeal of Part IV

Part IV of the Trustee Companies Act 1984 is repealed.

9New sections 26A and 26B inserted

After section 26 of the Trustee Companies Act 1984insert—

"26A Compulsory transfer determinations

(1)This section applies if—

(a)the Australian Securities and Investments Commission (ASIC) cancels the licence of a trustee company (the transferring company) and makes a determination under section 601WBA of the Corporations Act that there is to be a transfer of estate assets and liabilities from the transferring company to another licensed trustee company (the receiving company); and

(b)ASIC issues a certificate of transfer under section 601WBG of the Corporations Act for the transfer; and

(c)either or both of the transferring company and the receiving company are registered in Victoria.

(2)When the certificate of transfer comes into force, 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.

s. 9

Note

Section 601WBG(2)(d) of the Corporations Act requires the certificate of transfer to state when it is to come into force.

(3) Without limiting subsection (2)—

(a)if the transfer is a total transfer—

(i)all of the assets of the transferring company become assets of the receiving company; and

(ii)all of the liabilities of the transferring company become liabilities of the receiving company—

without the need for any further transfer, conveyance, assignment or assurance; and

(b)if the transfer is a partial transfer—

(i)assets of the transferring company listed in the certificate of transfer in accordance with section 601WBG(2)(c) of the Corporations Act become assets of the receiving company; and

(ii)liabilities of the transferring company listed in the certificate of transfer in accordance with section 601WBG(2)(c) of the Corporations Act become liabilities of the receiving company—

without the need for any further transfer, conveyance, assignment or assurance; 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.

(4) If the certificate of transfer includes provisions of the kind referred to in section 601WBG(3) of the Corporations Act specifying—

s. 9

(a)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;

(b) 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.

26BExemption from State tax

(1)In this section—

exempt matter means the transfer of the estate assets and liabilities of a transferring company to a receiving company under Division 2 of Part 5D.6 of the Corporations Act;

State tax means application or registration fees, duty under the Duties Act 2000 or any other tax, duty, fee or charge imposed by any Act or law of the State.

(2)State tax is not payable in relation to—

(a)an exempt matter; or

(b)anything done because of, or for a purpose connected with or arising out of, an exempt matter.".

10Repeal of sections 27 to 35

s. 10

Sections 27, 28, 29, 30, 31, 32, 33, 34 and 35 of the Trustee Companies Act 1984 are repealed.

11Repeal of Part VI

Part VI of the Trustee Companies Act 1984 is repealed.

12Repeal of Part VII

Part VII of the Trustee Companies Act 1984isrepealed.

13Repeal of Part IX

Part IX of the Trustee Companies Act 1984 is repealed.

14Repeal of sections 50 to 53 and 54A

Sections 50, 51, 52, 53 and 54A of the Trustee Companies Act 1984 are repealed.

15New Part XI inserted

s. 15

After Part X of the Trustee Companies Act 1984 insert—

"Part XI—TRANSITIONAL PROVISIONS

56Regulations of a savings or transitional nature

(1)Without limiting section 55, the Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Trustee Companies Legislation Amendment Act 2010, including the repeals and amendments made by that Act.

(2)Regulations made under this section may—

(a)have a retrospective effect to a day on or from the date that the Trustee Companies Legislation Amendment Act 2010 receives the Royal Assent; and

(b)be of limited or general application; and

(c)leave any matter or thing to be decided by a specified person or class of persons; and

(d)provide for the exemption of persons or matters or a class of persons or matters from any of the regulations made under this section.

(3)To the extent to which a provision of the regulations made under this section takes effect from a time that is earlier than the beginning of the day on which the regulations containing the provision are made, the provision does not operate so as—

s. 15

(a)to affect in a manner prejudicial to any person (other than the Crown or an authority of the Crown), the rights of that person existing before the date of making of those regulations; or

(b)to impose liabilities on any person (other than the Crown or an authority of the Crown) in respect of anything done or omitted to be done before the date of making of those regulations.

(4) Regulations under this section have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument.

57Court may review rate of commission

Despite the repeal of section 21(3) by section8 of the Trustee Companies Legislation Amendment Act 2010, any application made to the Supreme Court for a review of the commission or rate of commission charged in respect of an estate that was made but not determined before that repeal is taken to continue in force and may be dealt with as if section 21(3) had not been repealed.

58Order for account and audit of estate

s. 15

Despite the repeal of sections 27 and 28 by section 10 of the Trustee Companies Legislation Amendment Act 2010, any application made to the Supreme Court for an order for accountthat was made but not determined before that repeal is taken to continue in force and may be dealt with as if sections 27 and 28 had not been repealed.

59Order to restrain disposal of shares

Despite the repeal of section 29 by section10 of the Trustee Companies Legislation Amendment Act 2010, any application made to the Supreme Court for an order to restrain—

(a)a director or any shareholder from disposing of any share that the director or shareholder holds in the trustee company; or

(b)the voluntary winding up of a trustee company—

that was made but not determined before that repeal is taken to continue in force and may be dealt with as if section 29 had not been repealed.

60Order for winding up of trustee company

Despite the repeal of section 30 by section10 of the Trustee Companies Legislation Amendment Act 2010, any application made to the Supreme Court for an order for the winding up of a trustee company that was made but not determined before that repeal is taken to continue in force and may be dealt with as if section 30 had not been repealed.

61General transitional provision

s. 15

(1) The amendments and repeals made by the Trustee Companies Legislation Amendment Act 2010are not taken to affect any duties, obligations, rights, liabilities, immunities and privileges that apply to a trustee company pursuant to this Act that are not otherwise dealt with by Chapter 5D of the Corporations Act.

(2)Despite the commencement of the Trustee Companies Legislation Amendment Act 2010, any entitlement of a trustee company to fees or commissions that existed under this Act immediately before that commencement continue to exist and may be dealt with as if this Act, as in force before that commencement, continued to apply.

(3)Despite the commencement of the Trustee Companies Legislation Amendment Act 2010, any action taken or duties performed by a trustee company under this Act before that commencement are not taken to be affected by that commencement.

(4)Despite the commencement of the Trustee Companies Legislation Amendment Act 2010, if a trustee company was a party to any proceedings brought under this Act that were pending immediately before that commencement, the trustee company continues to be a party and this Act, as in force before that commencement, continues to apply to those proceedings.

______".

16Repeal of Schedule 2

s. 16

Schedule 2 to the Trustee Companies Act 1984 is repealed.

______

Part 3—Administration and Probate Act 1958

17Definitions

s. 17

See:
Act No.
6191.
Reprint No. 10
as at
25 September 2003
and amending
Act Nos
10/2005, 18/2005, 12/2008, 21/2008, 24/2008, 4/2009 and 69/2009.
LawToday:
www.
legislation.
vic.gov.au

In section 5(1) of the Administration and Probate Act 1958—

(a)insert the following definitions—

"licensed trustee companyhas the same meaning as in section 601RAA of the Corporations Act;

State Trustees has the same meaning as in theState Trustees (State Owned Company) Act 1994;".

(b)for the definition of trustee companysubstitute—

"trustee company means—

(a)a licensed trustee company; or

(b)State Trustees;".

18Executors' etc. commission

At the end of section 65 of the Administration and Probate Act 1958 insert—

"(2) Despite subsection (1), the commission or percentage allowed by the Court in respect of a licensed trustee company must not exceed the commission or percentage that a licensed trustee company may charge under Chapter5D of the Corporations Act.".

______

Part 4—Guardianship and Administration Act1986

19Remuneration of professional administrator

s. 9

See:
Act No.
58/1986.
Reprint No. 7
as at
26 September 2007
and amending
Act No.
12/2008.
LawToday:
www.
legislation.
vic.gov.au

After section 47A(2) of the Guardianship and Administration Act 1986 insert—

"(3)Despite subsection (2), the remuneration approved by the Tribunal in respect of a licensed trustee company must not exceed the limit on fees that may be charged by a licensed trustee company under Chapter 5D of the Corporations Act.

(4)For the purposes of this section—

licensed trustee companyhas the same meaning as in section 601RAA of the Corporations Act.".

______

Part 5—State Trustees (State Owned Company) Act 1994

20New section 20A inserted

s. 20

See:
Act No.
45/1994.
Reprint No. 2
as at
15 May 2008
LawToday:
www.
legislation.
vic.gov.au

After section 20 of the State Trustees (State Owned Company) Act 1994insert—

"20A Continued application of the Trustee Companies Act 1984

Despite the commencement of the Trustee Companies Legislation Amendment Act 2010, the Trustee Companies Act 1984, as in force immediately before that commencement, continues to apply in respect of State Trustees.".

21Repeal of sections 24, 25A, 27, 28, 29 and 30

Sections 24, 25A, 27, 28, 29 and 30 of the State Trustees (State Owned Company) Act 1994 are repealed.

______

Part 6—Repeal of Amending Act

22Repeal of Act

s. 22

This Act is repealed on 1 January 2012.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010

Endnotes

[†] Minister's second reading speech—

Legislative Assembly: 25 March 2010

Legislative Council: 15 April 2010

The long title for the Bill for this Act was "A Bill for an Act to amend the Trustee Companies Act 1984, to consequentially amend the Administration and Probate Act 1958, the Guardianship and Administration Act 1986 and the State Trustees (State Owned Company) Act 1994 and for other purposes."