TRUSTEE ACT 1958 - SECT 71 Appointment of certain corporations as custodian trustees

TRUSTEE ACT 1958 - SECT 71

S. 71(1) repealed by No. 55/1987 s. 57(3)(Sch. 5 item 78).

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    (2)     For the purposes of this section "approved corporation" means any body corporate which—

        (a)     has been formed for the purpose of—

              (i)     promoting art science religion education charity or any other useful object; or

              (ii)     acting as trustee in respect of any trusts for the benefit of any body which has for or included in its principal objects the promotion of art science religion education charity or any other useful object; and

        (b)     applies its profits (if any) or other income in promoting all or any of such purposes; and

        (c)     is approved by Order of the Governor in Council published in the Government Gazette as a corporation which may be appointed custodian trustee pursuant to this section.

S. 71(3) inserted by No. 55/1987 s. 57(3)(Sch. 5 item 79), amended by No. 74/2000 s. 3(Sch. 1 item 132.3).

    (3)     State Trustees or an approved corporation may be appointed custodian trustee by—

        (a)     the trust instrument; or

        (b)     any person having power to appoint new trustees; or

        (c)     order of the Court on the application of a beneficiary or of any person on whose application the Court would have power to appoint a new trustee.

S. 71(3A) inserted by No. 45/1994 s. 42(Sch. item 12.17).

    (3A)     State Trustees may consent to be appointed custodian trustee whether or not the number of trustees has been reduced below the original number.

S. 71(4) inserted by No. 55/1987 s. 57(3)(Sch. 5 item 79), amended by No. 74/2000 s. 3(Sch. 1 item 132.4).

    (4)     The following apply if State Trustees or an approved corporation is appointed custodian trustee—

        (a)     the trust property is to be transferred to the custodian trustee as sole trustee;

        (b)     the management of the trust property and the exercise of any power or discretion exerciseable by the trustees under the trust remain vested in the trustees other than the custodian trustee as managing trustees;

        (c)     the custodian trustee has custody of all securities and documents of title relating to the trust property but the managing trustees have free access to the securities and documents and are entitled to take copies or extracts;

        (d)     the custodian trustee must concur in and perform all acts necessary to enable the managing trustees to exercise their powers of management or any other power or discretion vested in them unless the matter is a breach of trust or involves a personal liability;

        (e)     if the custodian trustee does not concur the custodian trustee is not liable for any act or default on the part of a managing trustee;

        (f)     any sum payable to or out of the income or capital of the trust property is to be paid to or by the custodian trustee;

        (g)     the custodian trustee may allow the dividends and other income derived from the trust property to be paid to the managing trustees or as they direct;

        (h)     if paragraph (g) applies the custodian trustee is not answerable for any loss or misapplication of that income;

              (i)     the power of appointing a new trustee when exercisable by any continuing trustee is to be exercised by the managing trustees alone;

S. 71(4)(j) amended by No. 74/2000 s. 3(Sch. 1 item 132.4).

        (j)     State Trustees or an approved corporation has the same power to apply to the Court for the appointment of a new trustee as any other trustee;

        (k)     if the custodian trustee acts in good faith the custodian trustee is not liable for accepting as correct and acting upon any written statements by the managing trustees as to any matter of fact upon which the title to any trust property may depend or acting upon any legal advice obtained by the managing trustees independently of the custodian trustee;

        (l)     any matter in dispute between the custodian trustee and any managing trustee may be submitted in a summary manner to the Court whose decision is final and binding;

        (m)     the custodian trustee, a managing trustee or any beneficiary may apply to the Court to terminate the custodian trusteeship;

        (n)     if the Court is satisfied that the custodian trusteeship should be terminated the court may make any orders and give any directions it considers appropriate.

No. 5770 s. 72.