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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Trustee Companies (Commonwealth Regulation) Amendment
Bill 2010
A BILL FOR
An Act to amend the Trustee
Companies Act 1988; and to make consequential amendments to the
Administration
and Probate Act 1919, the Guardianship
and Administration Act 1993, the Legal
Practitioners Act 1981 and the Trustee
Act 1936.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of
Trustee Companies Act 1988
4Amendment to long
title
5Amendment of
section 3—Interpretation
6Repeal of sections 9 to
12
7Amendment of section 13—Investment of
trust funds
8Repeal of sections 15 to 15B
9Amendment of section 16—Power of trustee
company acting in representative capacity to hold its own shares etc
10Repeal
of section 16A
11Repeal of sections 17 to 22
12Insertion of Part 3A
Part 3A—Transfer of estate assets and
liabilities
Division
1—Preliminary
25AInterpretation
Division
2—Compulsory transfers
25BPurpose and application of
Division
25CCompulsory transfer of transferring company's
estate assets and liabilities
25DCertificates evidencing
operation of Division
25ERegistration or record of
transfer
25FExemption
from State taxes
Division
3—Voluntary transfers
25GVoluntary transfer of transferring company's estate
assets and liabilities
Division 4—Relationship of Part with
other laws
25HRelationship
of Part with other laws
13Repeal of section 27
14Repeal
of section 30
15Amendment of section
31—Regulations
16Repeal of Schedule
1
17Repeal of Schedule 2
Schedule 1—Consequential amendments and
transitional provision
Part 1—Amendment of Administration and
Probate Act 1919
1Amendment of section
4—Interpretation
2Amendment of
section 18—Administration guarantees may be required before
administration sealed
3Amendment of section 31—Administration
guarantees
Part 2—Amendment of Guardianship and
Administration Act 1993
4Amendment of section
3—Interpretation
5Amendment of section 35—Administration
orders
Part 3—Amendment of Legal Practitioners
Act 1981
6Amendment of section
5—Interpretation
Part 4—Amendment of Trustee
Act 1936
7Amendment of section
4—Interpretation
Part 5—Transitional
provision
8Interpretation
9Transitional
provision
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Trustee Companies (Commonwealth Regulation)
Amendment Act 2010.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5)
of the Acts
Interpretation Act 1915 does not apply to the commencement of this
Act or any provision of this Act.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part
2—Amendment of Trustee Companies
Act 1988
(1) Long title—delete "consolidate and amend the law relating" and
substitute:
make provision in relation
(2) Long title—delete "and to repeal the ANZ
Executors & Trustees Company (South Australia) Limited
Act 1985, the Bagot's
Executor Company Act 1910, the Elder's
Executor Company's Act 1910, the Executors
Company's Act 1885 and the Farmers'
Co-operative Executors Act 1919"
5—Amendment
of section 3—Interpretation
(1) Section 3(1), definitions of business day and
common fund—delete the definitions and substitute:
appointment includes nomination;
Commonwealth Act means the Corporations Act 2001
of the Commonwealth;
(2) Section 3(1), definition of investor—delete the
definition
(3) Section 3(1), definition of person who has a proper
interest or person with a proper interest—delete the
definition
(4) Section 3(1), definition of trustee company—delete
the definition and substitute:
trustee company means a licensed trustee company within the
meaning of Chapter 5D of the Commonwealth Act;
Sections 9 to 12 (inclusive)—delete the sections
7—Amendment
of section 13—Investment of trust funds
Section 13(c)—after "common fund" insert:
(within the meaning of the Commonwealth Act)
8—Repeal
of sections 15 to 15B
Sections 15 to 15B (inclusive)—delete the sections
9—Amendment
of section 16—Power of trustee company acting in representative capacity
to hold its own shares etc
Section 16—delete "Corporations
Act 2001 of the Commonwealth" and substitute:
Commonwealth Act
Section 16A—delete the section
11—Repeal
of sections 17 to 22
Sections 17 to 22 (inclusive)—delete the sections
After Part 3 insert:
Part
3A—Transfer of estate assets and liabilities
Division 1—Preliminary
25A—Interpretation
(1) In this Part—
ASIC means the Australian Securities and Investments
Commission;
authorised ASIC officer means a person authorised under
section 25D to issue
certificates under that section;
certificate of transfer—see
section 25B(2)(b);
receiving company—see Divisions 2 and 3;
State tax means—
(a) stamp duty; or
(b) any other tax, duty or impost that would, apart from an exemption
under this Part, be payable in respect of the transaction under the law of the
State;
transferring company—see Divisions 2 and 3.
(2) If an expression is defined in the Commonwealth Act and is also used
in this Part, the expression as used in this Part has, unless the contrary
intention appears, the same meaning as in that Act.
Division 2—Compulsory
transfers
25B—Purpose and application of
Division
(1) The purpose of this Division is to facilitate compulsory transfers of
estate assets and liabilities under Part 5D.6 of the Commonwealth
Act.
(2) This Division
applies if ASIC—
(a) cancels the licence of a trustee company (the transferring
company) and makes a compulsory transfer determination under
section 601WBA of the Commonwealth 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) issues a
certificate of transfer under section 601WBG of the Commonwealth Act
stating that the transfer is to take effect.
25C—Compulsory transfer of transferring company's
estate assets and liabilities
(1) From the time a certificate of transfer comes into force in respect of
the transfer of estate assets and liabilities from a transferring company to a
receiving company, the receiving company is to be taken to be the successor in
law of the transferring company, to the extent of the transfer.
(2) If the transfer of estate assets and liabilities is a total transfer,
all the assets and liabilities of the transferring company become respectively
the assets and liabilities of the receiving company without any transfer,
conveyance or assignment.
(3) If the transfer of estate assets and liabilities is a partial
transfer, all the assets and liabilities of the transferring company that are
included in the list (referred to in section 601WBG(2)(c) of the
Commonwealth Act) included in, or attached to, the certificate of transfer
become respectively assets and liabilities of the receiving company without any
transfer, conveyance or assignment.
(4) To the extent of the transfer of estate assets and liabilities, the
duties, obligations, immunities, rights and privileges applying to the
transferring company apply to the receiving company and, in
particular—
(a) an appointment of the transferring company in a will, order of a court
or instrument of any kind is to be taken to be an appointment of the receiving
company (whether the appointment was made before, on or after the commencement
of this Division and whether the appointment is in effect on that date, takes
effect after that date or has taken effect previously but some further act or
thing is necessary to perfect the appointment or undertaking of the office);
and
(b) in each case where the transferring company is acting as a trustee,
the receiving company is appointed as the trustee in place of the transferring
company and the receiving company—
(i) is entitled to exercise any rights, powers, capacities or authorities
in respect of or arising from each such appointment; and
(ii) to the extent provided in this Act, is obliged to discharge the
liabilities and obligations of the transferring company in respect of and
arising from each such appointment.
(5) If the certificate of transfer includes provisions of a kind referred
to in section 601WBG(3) of the Commonwealth Act—
(a) specifying that particular things are to happen or are taken to be the
case, those things are taken to happen, or to be the case, in accordance with
those provisions; or
(b) specifying a mechanism for determining things that are to happen or
are taken to be the case, things determined in accordance with that mechanism
are taken to happen, or to be the case, as determined in accordance with that
mechanism.
25D—Certificates evidencing operation of
Division
(1) An authorised
ASIC officer may, by a certificate in writing signed by the officer, certify
that a specified asset or liability of the transferring company has become an
asset or liability of the receiving company under this Division.
(2) For all purposes and in all proceedings, a certificate purporting to
be issued under
subsection (1) is
evidence of the matters certified.
(3) ASIC is empowered to authorise, in writing, a person who is a member
of ASIC, or of its staff, to issue certificates under this section.
25E—Registration or record of
transfer
The Registrar-General or any other person or authority required or
authorised under a law of the State to register or record transactions affecting
assets or liabilities, or documents relating to such transactions, must, on
application under this section accompanied by a certificate issued under
section 25D, register or
record in an appropriate manner the transfer or transfers to which the
certificate relates.
25F—Exemption from State taxes
No State taxes are chargeable under any Act in respect of a compulsory
transfer of estate assets or liabilities facilitated under this
Division.
Division 3—Voluntary transfers
25G—Voluntary transfer of transferring company's
estate assets and liabilities
(1) The Governor may
make regulations to facilitate the voluntary transfer of estate assets and
liabilities from 1 trustee company (the transferring company)
to another trustee company (the receiving company) if ASIC has
made a determination under the Commonwealth Act allowing the transfer.
(2) Without limiting the generality of
subsection (1),
the regulations may—
(a) provide that the receiving company is to be taken to be the successor
in law of the transferring company, to the extent of the transfer; and
(b) provide for the identification of estate assets or liabilities of the
transferring company; and
(c) provide for and give effect to the transfer of estate assets and
liabilities of the transferring company from the transferring company to the
receiving company; and
(d) provide for and give effect to the transfer of duties, obligations,
immunities, rights and privileges of the transferring company from the
transferring company to the receiving company, including by providing (for
example) that—
(i) an appointment of the transferring company in a will, order of a court
or instrument of any kind is to be taken to be an appointment of the receiving
company (whether the appointment was made before, on or after the commencement
of the regulation and whether the appointment is in effect on that date, takes
effect after that date or has taken effect previously but some further act or
thing is necessary to perfect the appointment or undertaking of the office);
and
(ii) in each case where the transferring company is acting as a trustee,
the receiving company is appointed as the trustee in place of the transferring
company; and
(e) provide for the registration or recording of the transfer (with or
without formal application) by the Registrar-General or any other person or
authority; and
(f) provide for evidence of matters relating to the transfer;
and
(g) provide for relief from the consequences of anything done or allowed
under regulations made under this section; and
(h) provide for payment, or exemption from payment, of State taxes in
respect of the transfer; and
(i) provide for the liquidation or dissolution of the transferring
company; and
(j) provide for any other matter of a savings or transitional nature
consequent on the transfer.
(3) A regulation made
under this section may, if the regulation so provides, take effect from the
commencement of this section or from a later day.
(4) A regulation made under this section has effect despite anything in a
contract, deed, undertaking, agreement, will or other instrument.
Division 4—Relationship of Part with other
laws
25H—Relationship of Part with other
laws
(1) This Part has
effect despite anything in a contract, deed, undertaking, agreement, will or
other instrument.
(2) Nothing done by or under this Part—
(a) places a receiving company, a transferring company or another person
in breach of contract or confidence or otherwise makes any of them guilty of a
civil wrong; or
(b) places a receiving company, a transferring company or another person
in breach of—
(i) a law of the State; or
(ii) a contractual provision prohibiting, restricting or regulating the
assignment or transfer of an asset or liability or the disclosure of
information; or
(c) releases a surety, wholly or partly, from all or any of the surety's
obligations.
(3) Without limiting
subsection (1),
if, apart from this section, the advice or consent of a person would be
necessary in a particular respect, the advice is taken to have been obtained or
the consent is taken to have been given.
Section 27—delete the section
Section 30—delete the section
15—Amendment
of section 31—Regulations
Section 31(2)—delete subsection (2) and substitute:
(2) Without limiting
the generality of subregulation (1), the regulations may—
(a) make provisions
of a saving or transitional nature—
(i) consequent on the amendment of this Act by a relevant Act;
or
(ii) relevant to the interaction between this Act and a relevant
Commonwealth Act; and
(b) prescribe a fine, not exceeding $1 250, for breach of or
non-compliance with a provision of the regulations.
(3) A provision of a
regulation made under
subsection (2)(a)
may, if the regulation so provides, take effect from the commencement of a
relevant Act or relevant Commonwealth Act or from a later day.
(4) In this section—
relevant Act means the Trustee
Companies (Commonwealth Regulation) Amendment Act 2010;
relevant Commonwealth Act means—
(a) the Corporations Legislation Amendment (Financial Services
Modernisation) Act 2009 of the Commonwealth; or
(b) any other Act of the Commonwealth relevant to the interaction between
this Act and the Corporations Act 2001 of the Commonwealth.
Schedule 1—delete the Schedule
Schedule 2—delete the Schedule
Schedule
1—Consequential amendments and transitional provision
Part
1—Amendment of Administration and Probate
Act 1919
1—Amendment
of section 4—Interpretation
Section 4—after the definition of spouse
insert:
trustee company means a trustee company within the meaning of
the
Trustee
Companies Act 1988;
2—Amendment
of section 18—Administration guarantees may be required before
administration sealed
Section 18(9)(c)—delete paragraph (c) and substitute:
(c) a trustee company.
3—Amendment
of section 31—Administration guarantees
Section 31(9)(c)—delete paragraph (c) and substitute:
(c) a trustee company.
Part
2—Amendment of Guardianship and
Administration Act 1993
4—Amendment
of section 3—Interpretation
Section 3(1)—after the definition of sterilisation
insert:
trustee company means a trustee company within the meaning of
the
Trustee
Companies Act 1988.
5—Amendment
of section 35—Administration orders
Section 35(2)(b)—delete "under the Trustee
Companies Act 1988"
Part
3—Amendment of Legal Practitioners
Act 1981
6—Amendment
of section 5—Interpretation
Section 5(1)—after the definition of trust account
insert:
trustee company means a trustee company within the meaning of
the
Trustee
Companies Act 1988;
Part
4—Amendment of Trustee
Act 1936
7—Amendment
of section 4—Interpretation
Section 4(1), definition of trustee company—delete the
definition and substitute:
trustee company means a trustee company within the meaning of
the
Trustee
Companies Act 1988.
In this Part—
appointment includes nomination;
Commonwealth Act means the Corporations Act 2001
of the Commonwealth;
principal Act means the Trustee
Companies Act 1988;
Schedule 1 trustee company means a company listed in
Schedule 1 of the principal Act immediately before the repeal of that
Schedule by
Part 2 of this
Act.
(1) The repeal of Schedule 1 of the principal Act by
Part 2 of this Act does
not affect the appointment of a Schedule 1 trustee company made before the
repeal as—
(a) the executor of a will, or the administrator of an estate of a
deceased person; or
(b) a trustee, agent, attorney, manager or receiver; or
(c) the guardian of a child; or
(d) the administrator, committee, guardian or manager of the estate of a
person who is unable to manage his or her own affairs.
(2) Except to the extent of any inconsistency with the Commonwealth
Act—
(a) any duties, obligations, immunities, rights and privileges of a
Schedule 1 trustee company arising before the repeal of that Schedule are
not affected by the repeal; and
(b) the assets and liabilities of a Schedule 1 trustee company are
not affected by the repeal; and
(c) any action taken or notice given by a Schedule 1 trustee company
before the repeal of that Schedule or the amendment of the principal Act by this
Act is not affected by the repeal or amendment; and
(d) the principal Act (as amended by this Act) continues to apply to a
Schedule 1 trustee company.
(3) Proceedings relating to a Schedule 1 trustee company that have
been commenced but not determined before the repeal of that Schedule are not
affected by the repeal.