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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Trustee Companies Legislation Amendment Bill
2010
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
PART 2--TRUSTEE COMPANIES ACT 1984 3
3 Definitions 3
4 Repeal of section 5 3
5 Repeal of Part II 3
6 Appointment as trustee etc. 4
7 Repeal of sections 19 and 20 4
8 Repeal of Part IV 4
9 New sections 26A and 26B inserted 4
26A Compulsory transfer determinations 4
26B Exemption from State tax 7
10 Repeal of sections 27 to 35 7
11 Repeal of Part VI 7
12 Repeal of Part VII 7
13 Repeal of Part IX 7
14 Repeal of sections 50 to 53 and 54A 7
15 New Part XI inserted 8
PART XI--TRANSITIONAL PROVISIONS 8
56 Regulations of a savings or transitional nature 8
57 Court may review rate of commission 9
58 Order for account and audit of estate 10
59 Order to restrain disposal of shares 10
60 Order for winding up of trustee company 10
61 General transitional provision 11
16 Repeal of Schedule 2 12
PART 3--ADMINISTRATION AND PROBATE ACT 1958 13
17 Definitions 13
18 Executors' etc. commission 13
561516B.I-23/3/2010 i BILL LA INTRODUCTION 23/3/2010
Clause Page
PART 4--GUARDIANSHIP AND ADMINISTRATION
ACT 1986 14
19 Remuneration of professional administrator 14
PART 5--STATE TRUSTEES (STATE OWNED COMPANY)
ACT 1994 15
20 New section 20A inserted 15
20A Continued application of the Trustee Companies
Act 1984 15
21 Repeal of sections 24, 25A, 27, 28, 29 and 30 15
PART 6--REPEAL OF AMENDING ACT 16
22 Repeal of Act 16
ENDNOTES 17
561516B.I-23/3/2010 ii BILL LA INTRODUCTION 23/3/2010
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Trustee Companies Legislation
Amendment Bill 2010
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.
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
5 facilitate the regulation of trustee companies
by the Commonwealth; and
561516B.I-23/3/2010 1 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Part 1--Preliminary
s. 2
(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
5 (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.
10 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
15 operation on that day.
__________________
561516B.I-23/3/2010 2 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 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 See:
Act No.
1984-- 10168.
Reprint No. 5
5 (a) the definitions of authorised deposit-taking as at
21 May 2009
institution, Commissioner, corporation, and
financial institution, insurance company, amending
Act No.
nominee corporation, reserve fund, related 68/2009.
corporation, subordinated loan and voting LawToday:
www.
10 shares are repealed; legislation.
vic.gov.au
(b) insert the following definition--
"State Trustees has the same meaning as in
the State Trustees (State Owned
Company) Act 1994;".
15 (c) for the definition of trustee company
substitute--
"trustee company means--
(a) a licensed trustee company within
the meaning of section 601RAA
20 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
25 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.
561516B.I-23/3/2010 3 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Part 2--Trustee Companies Act 1984
s. 6
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
5 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
10 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--
15 "26A Compulsory transfer determinations
(1) This section applies if--
(a) the Australian Securities and
Investments Commission (ASIC)
cancels the licence of a trustee
20 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
25 transferring company to another
licensed trustee company (the receiving
company); and
(b) ASIC issues a certificate of transfer
under section 601WBG of the
30 Corporations Act for the transfer; and
561516B.I-23/3/2010 4 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Part 2--Trustee Companies Act 1984
s. 9
(c) either or both of the transferring
company and the receiving company
are registered in Victoria.
(2) When the certificate of transfer comes into
5 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
10 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--
15 (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
20 liabilities of the receiving
company--
without the need for any further
transfer, conveyance, assignment or
assurance; and
25 (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
30 Corporations Act become assets of
the receiving company; and
561516B.I-23/3/2010 5 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Part 2--Trustee Companies Act 1984
s. 9
(ii) liabilities of the transferring
company listed in the certificate of
transfer in accordance with section
601WBG(2)(c) of the
5 Corporations Act become
liabilities of the receiving
company--
without the need for any further
transfer, conveyance, assignment or
10 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
15 company.
(4) If the certificate of transfer includes
provisions of the kind referred to in section
601WBG(3) of the Corporations Act
specifying--
20 (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;
25 (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
30 the case, as determined in accordance
with that mechanism.
561516B.I-23/3/2010 6 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Part 2--Trustee Companies Act 1984
s. 10
26B Exemption from State tax
(1) In this section--
exempt matter means the transfer of the
estate assets and liabilities of a
5 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
10 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
15 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.
20 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
25 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
30 Sections 50, 51, 52, 53 and 54A of the Trustee
Companies Act 1984 are repealed.
561516B.I-23/3/2010 7 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Part 2--Trustee Companies Act 1984
s. 15
15 New Part XI inserted
After Part X of the Trustee Companies Act 1984
insert--
"PART XI--TRANSITIONAL PROVISIONS
5 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
10 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.
15 (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;
20 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
25 (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.
561516B.I-23/3/2010 8 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Part 2--Trustee Companies Act 1984
s. 15
(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
5 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
10 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
15 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
20 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
25 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
30 repeal is taken to continue in force and may
be dealt with as if section 21(3) had not been
repealed.
561516B.I-23/3/2010 9 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Part 2--Trustee Companies Act 1984
s. 15
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
5 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.
10 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
15 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
20 (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
25 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
30 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
35 had not been repealed.
561516B.I-23/3/2010 10 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Part 2--Trustee Companies Act 1984
s. 15
61 General transitional provision
(1) The amendments and repeals made by the
Trustee Companies Legislation
Amendment Act 2010 are not taken to
5 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.
10 (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
15 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
20 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
25 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
30 continues to be a party and this Act, as in
force before that commencement, continues
to apply to those proceedings.
__________________".
35
561516B.I-23/3/2010 11 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Part 2--Trustee Companies Act 1984
s. 16
16 Repeal of Schedule 2
Schedule 2 to the Trustee Companies Act 1984
is repealed.
__________________
561516B.I-23/3/2010 12 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 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 See:
Act No.
Probate Act 1958-- 6191.
Reprint No. 10
5 (a) insert the following definitions-- as at
25 September
"licensed trustee company has the same 2003
and
meaning as in section 601RAA of the amending
Corporations Act; Act Nos
10/2005,
State Trustees has the same meaning as in 18/2005,
12/2008,
10 the State Trustees (State Owned 21/2008,
Company) Act 1994;". 24/2008,
4/2009 and
69/2009.
(b) for the definition of trustee company LawToday:
substitute-- www.
legislation.
"trustee company means-- vic.gov.au
15 (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--
20 "(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
25 Chapter 5D of the Corporations Act.".
__________________
561516B.I-23/3/2010 13 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Part 4--Guardianship and Administration Act 1986
s. 9
PART 4--GUARDIANSHIP AND ADMINISTRATION
ACT 1986
19 Remuneration of professional administrator
See: After section 47A(2) of the Guardianship and
Act No.
5 58/1986. Administration Act 1986 insert--
Reprint No. 7
as at "(3) Despite subsection (2), the remuneration
26 September
2007
approved by the Tribunal in respect of a
and licensed trustee company must not exceed
amending
Act No.
the limit on fees that may be charged by a
10 12/2008. licensed trustee company under Chapter 5D
LawToday:
www.
of the Corporations Act.
legislation.
vic.gov.au (4) For the purposes of this section--
licensed trustee company has the same
meaning as in section 601RAA of the
15 Corporations Act.".
__________________
561516B.I-23/3/2010 14 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 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 See:
Act No.
5 Owned Company) Act 1994 insert-- 45/1994.
Reprint No. 2
"20A Continued application of the Trustee as at
15 May 2008
Companies Act 1984 LawToday:
www.
Despite the commencement of the Trustee legislation.
Companies Legislation Amendment Act vic.gov.au
10 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
15 Sections 24, 25A, 27, 28, 29 and 30 of the State
Trustees (State Owned Company) Act 1994 are
repealed.
__________________
561516B.I-23/3/2010 15 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 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
5 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).
561516B.I-23/3/2010 16 BILL LA INTRODUCTION 23/3/2010
Trustee Companies Legislation Amendment Bill 2010
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561516B.I-23/3/2010 17 BILL LA INTRODUCTION 23/3/2010
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