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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Trustee Companies Amendment
Bill 2009
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Trustee Companies Act 1964 No 6 3
Schedule 2 Amendment of other Acts and instrument 8
b2009-141-19.d12
New South Wales
Trustee Companies Amendment
Bill 2009
No , 2009
A Bill for
An Act to amend the Trustee Companies Act 1964 to facilitate the regulation of
trustee companies by the Commonwealth; and for other purposes.
Clause 1 Trustee Companies Amendment Bill 2009
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Trustee Companies Amendment Act 2009. 3
2 Commencement 4
(1) This Act commences on a day or days to be appointed by proclamation, 5
except as provided by subsection (2). 6
(2) Sections 1 and 2 and Schedule 2.4 [2] commence on the date of assent 7
to this Act. 8
Page 2
Trustee Companies Amendment Bill 2009
Amendment of Trustee Companies Act 1964 No 6 Schedule 1
Schedule 1 Amendment of Trustee Companies Act 1
1964 No 6 2
[1] Section 2 Repeal and savings 3
Omit the section. 4
[2] Section 3 Interpretation 5
Omit the definitions of Commission, Financial institution, GST, Insurance 6
company, New Tax System Price Exploitation law, Nominee corporation, 7
Subordinated loan and Voting share from section 3 (1). 8
[3] Section 3 (1), definition of "Trustee company" 9
Omit the definition. Insert instead: 10
Trustee company means a licensed trustee company within the 11
meaning of Chapter 5D of the Corporations Act 2001 of the 12
Commonwealth. 13
[4] Section 3 (2) 14
Insert "or the Corporations Act 2001 of the Commonwealth" after "other Act". 15
[5] Section 3 (3)-(9) 16
Omit the subsections. 17
[6] Section 16 Common trust funds 18
Omit the section. 19
[7] Sections 17A-19F, 20A-25 and 29-29E 20
Omit the sections. 21
[8] Section 31 Managing director and others may represent trustee 22
company 23
Omit section 31 (3)-(6). 24
[9] Part 3 Shareholdings in trustee companies 25
Omit the Part. 26
[10] Section 32B Excluded matters under section 5F of Corporations Act 27
2001 of the Commonwealth 28
Omit the section. 29
Page 3
Trustee Companies Amendment Bill 2009
Schedule 1 Amendment of Trustee Companies Act 1964 No 6
[11] Sections 34A and 34B 1
Insert after section 34: 2
34A Compulsory transfer determinations 3
(1) This section applies if: 4
(a) the Australian Securities and Investments Commission 5
(ASIC) cancels the licence of a trustee company (the 6
transferring company) and makes a determination under 7
section 601WBA of the Corporations Act 2001 of the 8
Commonwealth that there is to be a transfer of estate assets 9
and liabilities from the transferring company to another 10
licensed trustee company (the receiving company), and 11
(b) ASIC issues a certificate of transfer under section 12
601WBG of that Act for the transfer, and 13
(c) either the transferring company or the receiving company 14
(or both) is registered in New South Wales. 15
(2) When the certificate of transfer comes into force, the receiving 16
company is taken to be the successor in law in relation to estate 17
assets and liabilities of the transferring company, to the extent of 18
the transfer. 19
Note. Section 601WBG of the Corporations Act 2001 of the 20
Commonwealth requires the certificate of transfer to state when it is to 21
come into force. 22
(3) Without limiting subsection (2): 23
(a) if the transfer is a total transfer--all of the assets and 24
liabilities of the transferring company become assets and 25
liabilities of the receiving company (without the need for 26
any further conveyance, transfer, assignment or 27
assurance), and 28
(b) if the transfer is a partial transfer--the assets and liabilities 29
listed as referred to in section 601WBG (2) (c) of the 30
Corporations Act 2001 of the Commonwealth of the 31
transferring company become assets and liabilities of the 32
receiving company (without the need for any further 33
conveyance, transfer, assignment or assurance), and 34
(c) to the extent of the transfer, the duties, obligations, 35
immunities, rights and privileges applying to the 36
transferring company apply to the receiving company, and 37
(d) if the certificate includes provisions of the kind referred to 38
in section 601WBG (3) of the Corporations Act 2001 of 39
the Commonwealth specifying: 40
Page 4
Trustee Companies Amendment Bill 2009
Amendment of Trustee Companies Act 1964 No 6 Schedule 1
(i) that particular things are to happen or are taken to be 1
the case--those things are, by force of this section, 2
taken to happen, or to be the case, in accordance 3
with those provisions, and 4
(ii) a mechanism for determining things that are to 5
happen or are taken to be the case--things 6
determined in accordance with the mechanism are, 7
by force of this section, taken to happen, or to be the 8
case, as determined in accordance with that 9
mechanism. 10
(4) The operation of this section is not to be regarded as: 11
(a) a breach of contract or confidence or otherwise as a civil 12
wrong, or 13
(b) a breach of any instrument (including, without limitation, 14
any provision prohibiting, restricting or regulating the 15
assignment or transfer of assets or liabilities), or 16
(c) an event of default under any contract or other instrument, 17
or 18
(d) giving rise to any remedy by a party to a contract or other 19
instrument, or as causing or permitting the termination of, 20
or exercise of rights under, any contract or other 21
instrument. 22
34B Exemption from State tax 23
(1) In this section: 24
exempt matter means the transfer of the estate assets and 25
liabilities of a transferring company to a receiving company 26
under Division 2 of Part 5D.6 of the Corporations Act 2001 of the 27
Commonwealth. 28
State tax means application or registration fees, duty under the 29
Duties Act 1997 or any other tax, duty, fee or charge imposed by 30
any Act or law of the State. 31
(2) State tax is not payable in relation to: 32
(a) an exempt matter, or 33
(b) anything done because of, or for a purpose connected with 34
or arising out of, an exempt matter. 35
[12] Sections 35-36B 36
Omit the sections. 37
Page 5
Trustee Companies Amendment Bill 2009
Schedule 1 Amendment of Trustee Companies Act 1964 No 6
[13] Section 37 Regulations 1
Omit section 37 (2). 2
[14] Section 37A Savings and transitional regulations 3
Omit the section. 4
[15] Schedule 1 5
Omit First-Third Schedules. Insert instead: 6
Schedule 1 Savings, transitional and other 7
provisions 8
Part 1 Preliminary 9
1 Regulations 10
(1) The regulations may contain provisions of a savings or 11
transitional nature consequent on the enactment of the following 12
Acts: 13
Trustee Companies Amendment Act 2000 14
Trustee Companies Amendment Act 2009 15
(2) Any such provision may, if the regulations so provide, take effect 16
from the date of assent to the Act concerned or a later date. 17
(3) To the extent to which any such provision takes effect from a date 18
that is earlier than the date of its publication on the NSW 19
legislation website, the provision does not operate so as: 20
(a) to affect, in a manner prejudicial to any person (other than 21
the State or an authority of the State), the rights of that 22
person existing before the date of its publication, or 23
(b) to impose liabilities on any person (other than the State or 24
an authority of the State) in respect of anything done or 25
omitted to be done before the date of its publication. 26
Part 2 Provisions consequent on enactment of 27
Trustee Companies Amendment Act 2009 28
2 Definitions 29
In this Part: 30
amending Act means the Trustee Companies Amendment Act 31
2009. 32
Page 6
Trustee Companies Amendment Bill 2009
Amendment of Trustee Companies Act 1964 No 6 Schedule 1
trustee company means a trustee company within the meaning of 1
this Act as in force before the commencement of this clause. 2
3 General 3
The provisions of this Part are subject to any regulations made 4
under clause 1. 5
4 BNY Trust Company of Australia Limited 6
Subject to the other provisions of this Part, this Act, as in force 7
immediately before the commencement of Schedule 1 [3] to the 8
amending Act, continues to apply to and in respect of any estate 9
management function (within the meaning of section 601RAC of 10
the Corporations Act 2001 of the Commonwealth) carried out by 11
BNY Trust Company of Australia Limited under any grant of 12
administration in force before that commencement. 13
5 Court may review rate of commission 14
Section 18 (3), as in force immediately before its repeal by the 15
amending Act, continues to apply with respect to any application 16
to the Court to review the commission (in whole or in part) or rate 17
of commission charged in respect of an estate that was made 18
before that repeal. 19
6 Charge on assets of estate or trust for advances 20
Section 17A, as in force immediately before its repeal by the 21
amending Act, continues to apply to any sum advanced before 22
that repeal. 23
7 Court may order account 24
Sections 20A-22, as in force immediately before their repeal by 25
the amending Act, continue to apply to an application made to the 26
Court with respect to the filing of an account, an order for an 27
account or for an audit (as the case requires) made before that 28
repeal. 29
8 Financial statements 30
Section 29D, as in force immediately before its repeal by the 31
amending Act, continues to apply to any financial statement 32
required to be forwarded under section 29D (2) within a period 33
occurring before that repeal. 34
Page 7
Trustee Companies Amendment Bill 2009
Schedule 2 Amendment of other Acts and instrument
Schedule 2 Amendment of other Acts and 1
instrument 2
2.1 Conveyancing Act 1919 No 6 3
[1] Section 7 Definitions 4
Omit the definition of Trustee company from section 7 (1). Insert instead: 5
Trustee company means a licensed trustee company within the 6
meaning of Chapter 5D of the Corporations Act 2001 of the 7
Commonwealth authorised by an Act of New South Wales to act 8
as trustee. 9
[2] Schedule 9 Savings, transitional and other provisions 10
Insert at the end of clause 1 (1): 11
Trustee Companies Amendment Act 2009 12
[3] Schedule 9, Part 8 13
Insert after Part 7: 14
Part 8 Provision consequent on enactment of 15
Trustee Companies Amendment Act 2009 16
14 Trust corporations 17
Any act, matter or thing done by a trustee company as a trust 18
corporation that had effect under this Act as in force immediately 19
before its amendment by the Trustee Companies Amendment Act 20
2009 is taken to have effect under this Act as amended. 21
2.2 Duties Act 1997 No 123 22
[1] Section 54 Change in trustees 23
Omit paragraph (b) of the definition of special trustee from section 54 (1). 24
Insert instead: 25
(b) a licensed trustee company within the meaning of Chapter 26
5D of the Corporations Act 2001 of the Commonwealth, 27
and 28
[2] Section 54 (1), definition of "special trustee" 29
Omit "or a trustee company referred to in paragraph (b)" from paragraph (c). 30
Page 8
Trustee Companies Amendment Bill 2009
Amendment of other Acts and instrument Schedule 2
2.3 Probate and Administration Act 1898 No 13 1
[1] Section 3 Definitions 2
Omit the definition of Trustee company from section 3 (1). Insert instead: 3
Trustee company means a licensed trustee company within the 4
meaning of Chapter 5D of the Corporations Act 2001 of the 5
Commonwealth authorised by an Act of New South Wales to act 6
as trustee. 7
[2] Fifth Schedule Savings and transitional provisions arising from 8
amendments to this Act 9
Insert at the end of the Schedule with appropriate Part and clause numbering: 10
Part Provision consequent on enactment of 11
Trustee Companies Amendment Act 2009 12
Trustee companies 13
Any act, matter or thing done by a trustee company that had effect 14
under this Act as in force immediately before its amendment by 15
the Trustee Companies Amendment Act 2009 is taken to have 16
effect under this Act as amended. 17
2.4 Trustee Companies Regulation 2005 18
[1] Clause 3 Definitions 19
Omit clause 3 (2) and (3). Insert instead: 20
(2) Notes included in this Regulation do not form part of this 21
Regulation. 22
[2] Clause 3A 23
Insert after clause 3: 24
3A Small estates 25
(1) For the purposes of sections 15A and 15AA of the Act, a trustee 26
company may file an election to administer an estate if the gross 27
value of the estate in New South Wales is less than $100,000. 28
(2) A notice of an election under section 15A or 15AA of the Act, or 29
a notice under section 15AB of the Act, must state that the 30
election has been made and may contain any other particulars of 31
the election that the trustee company thinks fit. 32
Page 9
Trustee Companies Amendment Bill 2009
Schedule 2 Amendment of other Acts and instrument
(3) A notice of an election under section 15A or 15AA of the Act 1
must be published: 2
(a) if the deceased person resided in New South Wales at the 3
date of death--in a newspaper circulating in the area 4
where the deceased resided, or 5
(b) in any other case--in a Sydney daily newspaper. 6
(4) This clause is taken to have commenced on 1 July 2009. 7
[3] Clauses 4-8 8
Omit the clauses and renumber clause 3A (as inserted by item [2]) as clause 4. 9
[4] Schedules 1 and 2 10
Omit the Schedules. 11
Page 10
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