Trustee Companies Legislation Amendment Act
2010
No. 17 of 2010
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1
2
1
Purpose
Commencement
1
2
PART 2—TRUSTEE COMPANIES ACT 1984
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Definitions
Repeal of section 5
Repeal of Part II
Appointment as trustee etc.
Repeal of sections 19 and 20
Repeal of Part IV
New sections 26A and 26B inserted
26A
Compulsory transfer determinations
26B
Exemption from State tax
Repeal of sections 27 to 35
Repeal of Part VI
Repeal of Part VII
Repeal of Part IX
Repeal of sections 50 to 53 and 54A
New Part XI inserted
3
3
3
4
4
4
4
4
7
7
7
7
7
7
8
PART XI—TRANSITIONAL PROVISIONS
8
56
Regulations of a savings or transitional nature
57
Court may review rate of commission
58
Order for account and audit of estate
59
Order to restrain disposal of shares
60
Order for winding up of trustee company
61
General transitional provision
Repeal of Schedule 2
PART 3—ADMINISTRATION AND PROBATE ACT 1958
17
18
3
Definitions
Executors' etc. commission
8
9
10
10
10
11
12
13
13
13
i
Section
Page
PART 4—GUARDIANSHIP AND ADMINISTRATION
ACT 1986
19
Remuneration of professional administrator
PART 5—STATE TRUSTEES (STATE OWNED COMPANY)
ACT 1994
20
21
New section 20A inserted
20A
Continued application of the Trustee Companies
Act 1984
Repeal of sections 24, 25A, 27, 28, 29 and 30
PART 6—REPEAL OF AMENDING ACT
22
Repeal of Act
14
14
15
15
15
15
16
16
═══════════════
ENDNOTES
17
ii
Victoria
Trustee Companies Legislation
Amendment Act 2010†
No. 17 of 2010
[Assented to 11 May 2010]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purpose
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
1
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
s. 2
Part 1—Preliminary
(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.
2 Commencement
(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.
__________________
2
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
Part 2—Trustee Companies Act 1984
s. 3
PART 2—TRUSTEE COMPANIES ACT 1984
3 Definitions
(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 company
substitute—
"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 1984 is repealed.
4 Repeal of section 5
Section 5 of the Trustee Companies Act 1984 is
repealed.
5 Repeal of Part II
Part II of the Trustee Companies Act 1984 is
repealed.
3
See:
Act No.
10168.
Reprint No. 5
as at
21 May 2009
and
amending
Act No.
68/2009.
LawToday:
www.
legislation.
vic.gov.au
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
s. 6
Part 2—Trustee Companies Act 1984
6 Appointment as trustee etc.
(1) In section 13(1) of the Trustee Companies Act
1984 omit "(including the reserve fund)".
(2) Section 13(2) of the Trustee Companies Act
1984 is repealed.
7 Repeal of sections 19 and 20
Sections 19 and 20 of the Trustee Companies
Act 1984 are repealed.
8 Repeal of Part IV
Part IV of the Trustee Companies Act 1984 is
repealed.
9 New sections 26A and 26B inserted
After section 26 of the Trustee Companies Act
1984 insert—
"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
4
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
Part 2—Trustee Companies Act 1984
(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.
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
5
s. 9
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
s. 9
Part 2—Trustee Companies Act 1984
(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—
(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.
6
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
Part 2—Trustee Companies Act 1984
26B Exemption 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.".
10 Repeal of sections 27 to 35
Sections 27, 28, 29, 30, 31, 32, 33, 34 and 35 of
the Trustee Companies Act 1984 are repealed.
11 Repeal of Part VI
Part VI of the Trustee Companies Act 1984 is
repealed.
12 Repeal of Part VII
Part VII of the Trustee Companies Act 1984 is
repealed.
13 Repeal of Part IX
Part IX of the Trustee Companies Act 1984 is
repealed.
14 Repeal of sections 50 to 53 and 54A
Sections 50, 51, 52, 53 and 54A of the Trustee
Companies Act 1984 are repealed.
7
s. 10
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
s. 15
Part 2—Trustee Companies Act 1984
15 New Part XI inserted
After Part X of the Trustee Companies Act 1984
insert—
"PART XI—TRANSITIONAL PROVISIONS
56 Regulations 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.
8
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
Part 2—Trustee Companies Act 1984
(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—
(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.
57 Court may review rate of commission
Despite the repeal of section 21(3) by
section 8 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.
9
s. 15
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
s. 15
Part 2—Trustee Companies Act 1984
58 Order for account and audit of estate
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 account that 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.
59 Order to restrain disposal of shares
Despite the repeal of section 29 by
section 10 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.
60 Order for winding up of trustee company
Despite the repeal of section 30 by
section 10 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.
10
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
Part 2—Trustee Companies Act 1984
61 General transitional provision
(1) The amendments and repeals made by the
Trustee Companies Legislation
Amendment Act 2010 are 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.
__________________".
11
s. 15
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
s. 16
Part 2—Trustee Companies Act 1984
16 Repeal of Schedule 2
Schedule 2 to the Trustee Companies Act 1984
is repealed.
__________________
12
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
Part 3—Administration and Probate Act 1958
s. 17
PART 3—ADMINISTRATION AND PROBATE ACT 1958
17 Definitions
In section 5(1) of the Administration and
Probate Act 1958—
(a) insert the following definitions—
"licensed trustee company has the same
meaning as in section 601RAA of the
Corporations Act;
State Trustees has the same meaning as in
the State Trustees (State Owned
Company) Act 1994;".
(b) for the definition of trustee company
substitute—
"trustee company means—
(a) a licensed trustee company; or
(b) State Trustees;".
18 Executors' 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
Chapter 5D of the Corporations Act.".
__________________
13
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
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
s. 9
Part 4—Guardianship and Administration Act 1986
PART 4—GUARDIANSHIP AND ADMINISTRATION
ACT 1986
19 Remuneration of professional administrator
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 company has the same
meaning as in section 601RAA of the
Corporations Act.".
__________________
14
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
Part 5—State Trustees (State Owned Company) Act 1994
s. 20
PART 5—STATE TRUSTEES (STATE OWNED COMPANY)
ACT 1994
20 New section 20A inserted
After section 20 of the State Trustees (State
Owned Company) Act 1994 insert—
"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.".
21 Repeal 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.
__________________
15
See:
Act No.
45/1994.
Reprint No. 2
as at
15 May 2008
LawToday:
www.
legislation.
vic.gov.au
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
Part 6—Repeal of Amending Act
s. 22
PART 6—REPEAL OF AMENDING ACT
22 Repeal of Act
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).
═══════════════
16
Trustee Companies Legislation Amendment Act 2010
No. 17 of 2010
Endnotes
ENDNOTES
25
†
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."
17