CONFISCATION ACT 1997 - SECT 76 Provisions concerning the trustee

CONFISCATION ACT 1997 - SECT 76

S. 76(1) amended by Nos 68/2010 s. 55(a), 79/2014 s. 26(a).

    (1)     A trustee is entitled to receive such fees, commissions and disbursements as may be approved by the Minister, or a prescribed person authorised by the Minister for the purposes of this subsection, on an application under this subsection in respect of the exercise of powers or the performance of duties in relation to property of which the trustee has taken control under a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order.

S. 76(2) amended by Nos 68/2010 s. 55(a), 79/2014 s. 26(a).

    (2)     If a trustee is directed by a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order to take control of property, the trustee may do anything that is reasonably necessary for the purpose of preserving the property including, but not limited to—

        (a)     becoming a party to any civil proceedings affecting the property;

        (b)     making sure that the property is insured;

        (c)     if the property consists, wholly or partly, of securities or investments—realising or otherwise dealing with the securities or investments;

        (d)     if the property consists, wholly or partly, of a business—

              (i)     employing, or terminating the employment of, persons in the business;

              (ii)     doing any other thing that is necessary or convenient for carrying on the business on a sound commercial basis;

        (e)     if the property consists, wholly or partly, of shares in a company—exercising (to the exclusion of the registered holder) the rights attaching to the shares as if the trustee were the registered holder.

S. 76(3) amended by Nos 68/2010 s. 55(a), 79/2014 s. 26(a).

    (3)     A person must not hinder or obstruct the trustee in the exercise of powers or the performance of duties by the trustee in relation to property of which the trustee has taken control under a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order.

Penalty:     Level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both.

    (4)     A certificate under the hand or seal of a trustee—

S. 76(4)(a) amended by Nos 68/2010 s. 55(a)(b), 79/2014 s. 26.

        (a)     certifying that a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order has been made directing the trustee to take control of property and that the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order is in force; and

S. 76(4)(b) amended by Nos 68/2010 s. 55(b), 79/2014 s. 26(b).

        (b)     stating the terms of the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order—

is for all purposes evidence and, until the contrary is proved, conclusive evidence of the facts so certified and stated.

    (5)     A trustee is only personally liable for any rates, land tax or municipal or other statutory charges which—

S. 76(5)(a) amended by Nos 68/2010 s. 55(a), 79/2014 s. 26(a).

        (a)     are imposed by or under a law of Victoria on or in respect of property of which the trustee has taken control under a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order; and

S. 76(5)(b) amended by Nos 68/2010 s. 55(b), 79/2014 s. 26(b).

        (b)     fall due on or after the date of the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order—

to the extent of the rents and profits received by the trustee in respect of that property on or after that date.

S. 76(6) amended by Nos 68/2010 s. 55(a), 79/2014 s. 26(a).

    (6)     If a trustee, having taken control under a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order of a business carried on by a person, carries on that business, the trustee is not personally liable for—

        (a)     any payment in respect of long service leave for which that person was liable; or

S. 76(6)(b) amended by Nos 68/2010 s. 55(b), 79/2014 s. 26(b).

        (b)     any payment in respect of long service leave to which a person employed by the trustee to manage the business, or the legal personal representative of such a person, becomes entitled after the date of the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order.

S. 76(7) amended by Nos 68/2010 s. 55(a), 79/2014 s. 26(a).

    (7)     With the permission of the Minister, or a prescribed person authorised by the Minister for the purposes of this subsection, a trustee may appoint a person as agent to exercise all or any of the powers or perform all or any of the duties conferred or imposed on the trustee by this Act in relation to property of which the trustee has taken control under a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order.

S. 76(8) inserted by Nos 55/2014 s. 59, 79/2014 s. 26(a).

    (8)     If a court, when making a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order, directs a person holding a prescribed position referred to in section 14(3) or 36H(3) (as the case may be) to take control of property, a reference in subsections (2) to (7) to the trustee is to be read as a reference to the person holding the prescribed position.

Part 10—Disposal orders