New South Wales Consolidated Acts

TRUSTEE ACT 1925 - SECT 40

40 Powers

(1) Where trust property consists of or includes any share or interest in property or the proceeds of the sale of property not vested in the trustee, or any other thing in action, the trustee on the same falling into possession, or becoming payable or transferable--

(a) may agree upon or ascertain the amount or value thereof or any part thereof in such manner as the trustee may think fit,

(b) may accept in or towards satisfaction thereof, at the market or current value, or upon any valuation or estimate of value which the trustee shall think fit, any securities authorised by the instrument, if any, creating the trust or by law for the investment of money subject to the trust,

(c) may allow any deductions for duties costs charges and expenses which the trustee may think proper or reasonable, and

(d) may execute any release in respect of the premises, so as effectually to discharge all accountable parties from all liability in respect of any matters coming within the scope of such release.

The trustee shall not be responsible for any loss occasioned by any act or thing so done by the trustee in good faith.

(2) Unless and until required in writing so to do by some person beneficially interested under the trust or by the guardian of that person's person or estate, and unless also due provision is made to the trustee's satisfaction for payment of the costs of any proceedings required to be taken, the trustee shall not be under any obligation--

(a) to apply for any stop or other like order upon any securities or other property out of or on which such share or interest or other thing in action is derived payable or charged, or

(b) to take any proceedings on account of any act default or neglect on the part of the persons in whom the securities or other property or any of them or any part thereof are for the time being or had at any time been vested.

(3) The trustee may if he or she thinks fit refer any of the matters mentioned in subsection (2) to the person beneficially entitled or to the guardian of that person's person or estate.

(4) The trustee shall not be chargeable with breach of trust by reason of any omission in any of the matters mentioned in subsection (2), except when required and upon due provision made as therein mentioned.

(5) Nothing in this section shall relieve a trustee of the obligation to get in and obtain payment or transfer of any such share or interest or other thing in action on the same falling into possession.

(6) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

(7) This section applies to trusts created either before or after the commencement of this Act.