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Trustee Companies Regulations 2016S.R. No. 13/2016

TABLE OF PROVISIONS

Regulation Page

1 Objective 12 Authorising provision 13 Commencement 14 Revocation 25 Definitions 26 Election to administer estate 27 Prescribed manner of calculating value of perpetual trust 28 Exemptions from the Act in relation to commissions 39 Prescribed deposit or loan 310 Prescribed period 411 Statutory declaration 5

Schedule 1—Forms 6

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Endnotes 19

1

STATUTORY RULES 2016

S.R. No. 13/2016

Trustee Companies Act 1984

Trustee Companies Regulations 2016

The Governor in Council makes the following Regulations:

Dated: 15 March 2016

Responsible Minister:

TIM PALLASTreasurer

ANDREW ROBINSONClerk of the Executive Council

1 Objective

The objective of these Regulations is to prescribe matters required to be prescribed by the Trustee Companies Act 1984 as in force on 10 May 2010 as that Act applies to State Trustees.

Note

By operation of section 20A(1) of the State Trustees (State Owned Company) Act 1994, the Trustee Companies Act 1984 as in force immediately before the commencement of the Trustee Companies Legislation Amendment Act 2010 on 11 May 2010 continues to apply in respect of State Trustees.

2 Authorising provision

These Regulations are made under section 55 of the Trustee Companies Act 1984.

3 Commencement

These Regulations come into operation on 27 March 2016.

1

4 Revocation

The Trustee Companies Regulations 20061 are revoked.

5 Definitions

In these Regulations—

licensed estate agent means a person holding an estate agent's licence under the Estate Agents Act 1980;

livestock agent means a person who carries on the business of stock or station agent;

prescribed financial market means a prescribed financial market within the meaning of section 9 of the Corporations Act;

the Act means the Trustee Companies Act 1984 as in force on 10 May 2010.

6 Election to administer estate

(1) For the purposes of section 11A(1) of the Act, the prescribed form of an election is in Form 1 in Schedule 1.

(2) For the purposes of section 11A(2) of the Act, the prescribed form of an election is in Form 2 in Schedule 1.

7 Prescribed manner of calculating value of perpetual trust

For the purposes of section 21A(2)(a) of the Act, the prescribed manner of calculating the value of a perpetual trust is to use the value of the assets of the trust at the time the administration fee is drawn without deduction of any liabilities.

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8 Exemptions from the Act in relation to commissions

(1) Section 23(1) of the Act does not apply to a commission received by a person who is—

(a) a licensed estate agent; or

(b) a livestock agent; or

(c) a participant in a prescribed financial market—

for the performance of a function in relation to property that forms the whole or any part of an estate if—

(d) the commission is an amount or is paid at a rate that does not exceed an amount or a rate generally applicable to the payment of commissions for the performance of functions of that kind; and

(e) each beneficiary of the estate who has an interest in that property (other than a beneficiary who is not legally capable or whom the trustee company is unable to find, or who cannot be ascertained) has consented in writing to the performance of that function by the person referred to in paragraph (a), (b) or (c).

(2) Section 23(1) of the Act does not apply to a commission received by an ADI for the performance of a function in relation to property that forms the whole or any part of an estate if the commission is an amount or is paid at a rate that does not exceed an amount or a rate generally applicable to the payment of commissions for the performance of functions of that kind.

9 Prescribed deposit or loan

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For the purposes of section 32(2) of the Act, the prescribed circumstance in which section 32(1) of the Act does not apply to a deposit or loan made from an estate administered or managed by a trustee company to a related corporation other than an ADI is if—

(a) the deposit or loan to the related corporation is—

(i) authorised, either expressly or generally, in the trust instrument or other instrument authorising the administration or management of the estate; or

(ii) a deposit or loan which may be made by the trustee company under the Trustee Act 1958 or under any corresponding Act of another State or Territory; and

(b) the trustee company obtains independent advice, otherwise than at the expense of the estate, that the proposed deposit or loan—

(i) is on terms and conditions no less favourable than those applying to deposits or loans with corporations which are similar in nature to the related corporation; and

(ii) will not disadvantage the estate.

10 Prescribed period

For the purposes of section 36(2) of the Act, the prescribed periods are—

(a) the period beginning on 1 January and ending on 30 June in each year; and

(b) the period beginning on 1 July and ending on 31 December in each year.

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11 Statutory declaration

For the purposes of section 52(1) of the Act, the prescribed form of a statutory declaration is in the form of Form 3 in Schedule 1.

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Schedule 1—FormsFORM 1

Regulation 6(1)

IN THE SUPREME COURT OF VICTORIA IN THE PROBATE JURISDICTION

IN THE MATTER OF the Estate of [name of deceased], deceased

ELECTION TO ADMINISTER ESTATE UPON INTESTACY UNDER SECTION 11A(1) OF THE TRUSTEE COMPANIES

ACT 1984 AS IN FORCE ON 10 MAY 2010†

State Trustees elects under section 11A(1) of the Trustee Companies Act 1984 as in force on 10 May 2010 to administer the estate of the deceased.

PARTICULARS1. The deceased late of [last residential address of deceased] in the State

of Victoria, [last known occupation of deceased], died on [date] intestate leaving property in Victoria the gross value of which is estimated by State Trustees at the time of this election not to exceed $50 000.

2. From a search in the Office of the Registrar at the time of this election, it has been found that no caveat has been lodged in respect of this matter, and that no grant of representation has been made to any person.

3. State Trustees is entitled to a grant of administration of the estate of the deceased.

4. A notice of the intention of State Trustees to file an election was published in [name of newspaper], a daily newspaper circulating generally throughout Victoria on [date] and a copy of the notice is filed with this election and marked "A".

5. An inventory of the estate is filed with this election and marked "B".

Date:

Signed for and on behalf of State Trustees

† By operation of section 20A(1) of the State Trustees (State Owned Company) Act 1994, the Trustee Companies Act 1984 as in force immediately before the commencement of the Trustee Companies Legislation Amendment Act 2010 on 11 May 2010 continues to apply in respect of State Trustees.

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FORM 2

Regulation 6(2)

IN THE SUPREME COURT OF VICTORIA IN THE PROBATE JURISDICTION

IN THE MATTER OF the *Will/*Will and Estate of [name of deceased], deceased

ELECTION TO ADMINISTER THE ESTATE OF A TESTATOR UNDER SECTION 11A(2) OF THE TRUSTEE COMPANIES ACT 1984 AS IN FORCE ON 10 MAY 2010†

State Trustees elects under section 11A(2) of the Trustee Companies Act 1984 as in force on 10 May 2010 to administer the estate of the testator.

PARTICULARS1. The deceased late of [last residential address of deceased] in the State

of Victoria, [last known occupation of deceased] died on [date] leaving by Will property in Victoria the gross value of which is estimated by State Trustees at the time of this election not to exceed $50 000.

2. From a search in the Office of the Registrar at the time of this election, it has been found that no caveat has been lodged in respect of this matter, and that no grant of representation has been made to any person.

3. State Trustees is entitled to a grant of *probate/ *administration with the will of the deceased annexed.

4. Filed with this election and marked "A" is the last Will of the deceased.

5. A notice of the intention of State Trustees to file an election was published in [name of newspaper], a daily newspaper circulating generally throughout Victoria on [date] and a copy of the notice is filed with this election and marked "B".

6. An inventory of the estate is filed with this election and marked "C".

Date:

Signed for and on behalf of State Trustees

*Delete if not applicable.


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FORM 3

Regulation 11

STATUTORY DECLARATION UNDER SECTION 52(1) OF THE TRUSTEE COMPANIES ACT 1984 AS IN FORCE ON

10 MAY 2010†

Name of Company (in this declaration called "the company")

*I/We, , *Managing Director/*Manager

, Chief Financial Officer

, Director

, Director

declare that—

1. On (in this declaration called the "balance date") (note 2)—

The authorised capital of the company was $ divided into shares of $ each.

The issued capital was made up of shares of $ each paid to $ per share.

The total amount of paid up capital was $ .

The uncalled capital being $ per share and amounting to $ was made up as follows—

$ per share amounting to $ which may be called up at the discretion of the company.

$ per share amounting to $ which can only be called up on and for the purpose of the winding up of the company (reserve liability).

Calls to the amount of $ per share amounting to $ had been made but remained unpaid and the shares had not been forfeited.

The net tangible assets of the company (i.e. the amount calculated by deducting total liabilities from total tangible assets) amounted to $ .

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2. The following loans were obtained from financial institutions other than ADIs and insurance companies during the period of 3 months preceding the balance date—

Name of Institution

Amount of Loan $'000

Term of loan and Maturity Date

Interest Rate

Security (if applicable)

3. The following contingent liabilities existed at balance date. (Show the amounts where they can be quantified)—

$'000

Guarantees of liabilities of related parties (note 1) Guarantees of liabilities of other personsOther contingent liabilities (note 3)

TOTAL

4. The guarantees of liabilities of related parties (note 1) stated above were made up as follows—

Name of Related PartyAmount

$'000

TOTAL

5. The nature and amount of the credit and standby facilities available to the company as at balance date, a summary of the restrictions affecting those facilities and the duration of each of those facilities were as follows—

Nature of Facility

Summary of Restrictions Duration

Amount of Facility available to the company $'000

Amount of Facility unused at balance date $'000

TOTAL

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$'000

6. The value of trust estates in Victoria as at balance date was—

(a) trust estates in Victoria of the company that consist of estates committed to the administration or management in Victoria of the company;

(b) money received in Victoria by the company (not being an estate or part of an estate) for investment in a common fund;

(c) other estates committed to the administration or management of the company;

(d) other money received (not being an estate or part of an estate) for investment in a common fund.

TOTAL

7. The reserve fund created under section 36(2) of the Trustee Companies Act 1984 as in force on 10 May 2010 amounted to $ at balance date and comprised the following assets—

Description

TOTAL $

8. The balance sheet as at balance date (note 2) and the profit and loss account for the 3 months ended on that date were as follows—

BALANCE SHEET AS AT .$'000

CURRENT ASSETS (note 1)

Cash with ADIs and on hand Bills receivable:

ADI accepted or endorsed (note 4)

other (note 4)

Investments in and loans to related parties (note 1):

investments (notes 4 and 5)

loans:

secured (notes 4 and 6)

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unsecured (note 4)$'000

Other loans and deposits (note 7):


unsecured (note 4)

Government and semi-government securities (note 8)

Shares, units, options, debentures and convertible notes:

quoted on a prescribed financial market:

market value $ (notes 1, 4 and 5)

not quoted on a prescribed financial market (note 4)

Interests in partnerships, trusts and unincorporated joint ventures (notes 4 and 9)

Lease receivables (note 4)

Property held for resale (note 4)

Other current assets (notes 3 and 4)

TOTAL CURRENT ASSETS

NON-CURRENT ASSETS (note 1)

Bills receivable:

ADI accepted or endorsed (note 8)

other (note 8)

Investments in and loans to related parties (note 1):

investments (notes 5 and 8)

loans:


unsecured (note 8)

Other loans and deposits (note 7):


unsecured (note 8)

Government and semi-government securities (note 8)

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Shares, units, options, debentures and convertible notes:

quoted on a prescribed financial market—

market value $ (notes 1, 5 and 8)

not quoted on a prescribed financial market (notes 5 and 8)

Interests in partnerships, trusts and unincorporated joint ventures (notes 8 and 9)

Lease receivables (note 8)

$'000

Property held for resale (note 8)

Property, plant and equipment (note 8)

Intangible assets (notes 3 and 8)

Other non-current assets (notes 3 and 8)

TOTAL NON-CURRENT ASSETS

TOTAL ASSETS

CURRENT LIABILITIES (note 1)

ADI overdrafts and loans:

secured (note 6)

unsecured

Loans from other financial institutions:

secured (note 6)

unsecured

Bills payable and liabilities under promissory notes

Subordinated loans from related parties (note 1)

Clients' balances and deposits:


unsecured

Trade creditors and accrued expenses

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Lease payables

Provisions:

income tax

dividends

other

Deferred income (notes 3 and 10)

Other amounts payable:


unsecured (note 3)

TOTAL CURRENT LIABILITIES

$'000

NON-CURRENT LIABILITIES (note 1)

ADI overdrafts and loans:

secured (note 6)

unsecured

Loans from other financial institutions:

secured (note 6)

unsecured

Bills payable and liabilities under promissory notes

Subordinated loans from related parties (note 1)

Clients' balances and deposits:


unsecured

Lease payables

Provisions:

income tax

other

Deferred income (notes 3 and 10)

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Other amounts payable:


unsecured (note 3)

TOTAL NON-CURRENT LIABILITIES

TOTAL LIABILITIES

NET ASSETS/SHAREHOLDERS' FUNDS(Total assets less total liabilities)

LESS: INTANGIBLE ASSETS

NET TANGIBLE ASSETS

PROFIT AND LOSS ACCOUNT FOR THE 3 MONTHPERIOD ENDED (note 2)

Operating profit (loss)

Income Tax

Operating Profit (loss) after income tax

Profit (loss) on extraordinary items after income tax

Net profit (loss)

Please state details of—

(i) material profits arising from the sale of non-current assets; and

(ii) material increases arising from the revaluation of non-current assets; and

(iii) abnormal items,

accredited as revenue.

Please state details of—

(i) material losses arising from the sale of non-current assets; and

(ii) material decreases arising from the revaluation of non-current assets; and

(iii) abnormal items,

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charged as expense.

At balance date the company had the following contingent liabilities (note 11):

(i) name of potential creditor(s):

(ii) estimate of amount of contingent liabilities:

9. In our opinion the balance sheet and the profit and loss account of the company have been drawn up so as to give a true and fair view of the state of affairs of the company as at balance date and the profit or loss of the company for the period ended on that date.

10. The classification of assets and liabilities and the valuation of assets in the balance sheet are based upon the company's intentions at balance date as to the use or disposal of those assets and the repayment of liabilities.

11. In our opinion, at the date of this declaration, there are reasonable grounds to believe that the company will be able to pay its debts as and when they fall due.

12. During the period of 3 months preceding the balance date:

There had been the following significant changes in the nature of the principal activities of the company (note 12):

The following items, transactions or events of a material and unusual nature affected the results of the company's operations or its state of affairs (note 12):

The provisions of the Trustee Companies Act 1984 as in force on 10 May 2010 in respect of investment of moneys held by the company on trust had been complied with.

The company had complied with all other requirements of the Trustee Companies Act 1984 as in force on 10 May 2010.

13. The following matters or circumstances have arisen since the balance date and have significantly affected or may significantly affect:

(a) the operations of the company; or

(b) the results of those operations; or

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(c) the state of affairs of the company,

in subsequent periods (note 12)—

and we acknowledge that this declaration is true and correct, and it is made in the belief that a person making a false declaration is liable to the penalties of perjury.

Name: Position:

Signature:

Declared at on

before me

(A person authorised under section 107A(1) of the Evidence (Miscellaneous Provisions) Act 1958 to witness the signing of a statutory declaration)

Name: Position:

Signature:

Declared at on

before me


Name: Position:

Signature:

Declared at on

before me


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Name: Position:

Signature:

Declared at on

before me


*Delete if not applicable.

NOTES

1. In this Form—

current assets means cash or other assets which, in the normal course of business, would be consumed or converted into cash within 12 months of balance date;

non-current assets means assets which, in the normal course of business, would be consumed or converted into cash after 12 months of balance date;

current liabilities means liabilities which, in the normal course of business, would be due and payable within 12 months of balance date;

non-current liabilities means liabilities which, in the normal course of business, would be due and payable after 12 months of balance date;

prescribed financial market means a prescribed financial market within the meaning of section 9 of the Corporations Act;

related party in relation to the company, means—

(a) a related corporation; or(b) the director, executive officer or secretary of the

company; or(c) the director, executive officer or secretary of a related

corporation controlled by the director, executive officer or secretary of the company; or

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(d) a person who is an associate, within the meaning of Division 2 of Part 1.2 of the Corporations Act, of the company.

2. Show the date of the last day of the 3 month period.

3. Provide details of major components if the total amount is material.

4. State at lower of cost and net realisable value.

5. Indicate types of investments by broad categories.

6. Indicate the nature and extent of security by broad categories.

7. Includes mortgages.

8. State at cost or valuation less amounts written off or provided for depreciation or permanent diminution in value.

9. Indicate the nature and extent of the interests by broad categories.

10. Unearned income must not be included in an estimate of the gross amount of a class of debts unless the amount of unearned income so included is shown as a deduction from the estimate of the gross amount of the class of debts concerned.

11. Briefly explain how each contingent liability arose.Indicate the likelihood of each contingent liability being realised.List any contingent liability which has ceased to exist since the last quarterly report. Briefly explain why.

12. If no change insert "nil".


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Endnotes

Endnotes


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1 Reg. 4: S.R. No. 36/2006.

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