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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Trustees of Western Australia Limited
(Transfer of Business) Bill 2002
CONTENTS
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Act binds Crown 4
5. Undertaking vested in Plan B Trustees 4
6. Supplementary provisions as to vesting of undertaking 6
7. Rights in respect of land that is an excluded asset 8
8. Proceedings 9
9. Evidence 9
10. Transfer of employees 9
11. Prescribed securities 10
12. Officers to register documents 11
13. Protection of persons dealing with Plan B Trustees or
TrustWest 11
14. Vesting of TrustWest common trust funds in Plan B
Trustees 12
15. Amendment of Trustee Companies Act 1987 12
page i
94--1
Western Australia
LEGISLATIVE ASSEMBLY
Trustees of Western Australia Limited
(Transfer of Business) Bill 2002
A Bill for
An Act to provide for the transfer of the business conducted by and
the undertaking of Trustees of Western Australia Limited to Plan B
Trustees Limited, to amend the Trustee Companies Act 1987, and for
related purposes.
Reasons for enactment
1. It is proposed to transfer the business and undertaking of Trustees
of Western Australia Limited to Plan B Trustees Limited, both
corporations being subsidiaries of Plan B Financial Services
Limited.
2. In the interest of business efficiency it is expedient that the
business conducted by and undertaking of Trustees of Western
Australia Limited should be transferred to Plan B Trustees Limited,
and that all property held by Trustees of Western Australia Limited
as trustee should be vested in Plan B Trustees Limited.
3. It is expedient to enact legislation to effect the transfer and vesting
and to make provision for other matters related to the transfer and
vesting.
page 1
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 1
The Parliament of Western Australia enacts as follows:
1. Short title
This Act may be cited as the Trustees of Western Australia
Limited (Transfer of Business) Act 2002.
2. Commencement
This Act comes into operation on a day fixed by proclamation.
3. Interpretation
In this Act, unless the contrary intention appears --
5 "appointment" means the appointment of TrustWest as
executor, manager, trustee, agent or attorney made --
(a) by will, codicil, deed, agreement, declaration,
nomination or other instrument;
(b) by the Supreme Court; or
10 (c) under any written law,
and includes the appointment of TrustWest as one of 2 or
more executors, managers, trustees, agents or attorneys;
"appointed day" means the day on which section 5 comes into
operation;
15 "corporation" means a body whether corporate or
unincorporate;
"excluded assets" means --
(a) documents required by law to be kept by TrustWest;
and
20 (b) land held by or vested in TrustWest as beneficial
owner and not as executor, trustee, nominee or in any
other capacity on behalf of another person, and
buildings or structures on that land;
page 2
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 3
"instrument" means an instrument (other than this Act) that
creates, evidences, modifies or extinguishes rights or
liabilities, or would do so if it or a copy of it were lodged,
filed or registered under any written or other law, and
5 includes any judgment, order or process of a court and any
will, codicil, declaration of trust, deed of trust or power of
attorney;
"land" includes any estate or interest in land, or an interest in
respect of land;
10 "legal proceedings" includes an arbitration;
"liabilities" means all liabilities, duties and obligations,
whether actual, contingent or prospective;
"Plan B Trustees" means Plan B Trustees Limited;
"prescribed securities" means securities within the meaning of
15 the Corporations Act 2001 of the Commonwealth;
"property" means property of every kind whether tangible or
intangible, real or personal, corporeal or incorporeal and,
without limiting the generality of that meaning, includes
choses in action, goodwill, rights, interests and claims of
20 every kind in or to property, whether arising from, accruing
under, created or evidenced by, or the subject of, an
instrument or otherwise and whether liquidated or
unliquidated, actual, contingent or prospective;
"rights" means all rights, powers, privileges and immunities,
25 whether actual, contingent or prospective;
"security" means a mortgage or charge (whether legal or
equitable), debenture, bill of exchange, promissory note,
guarantee, indemnity, lien, pledge or other security for the
payment of money or for the discharge of any other
30 liability, and includes an agreement or undertaking to give
or execute any of those things whether upon demand or
otherwise;
"transferred employee" means an employee of TrustWest who
becomes an employee of Plan B Trustees under this Act;
page 3
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 4
"TrustWest" means Trustees of Western Australia Limited;
"undertaking", in relation to TrustWest, means --
(a) all property of TrustWest (apart from excluded
assets);
5 (b) all rights and liabilities of TrustWest (apart from
rights and liabilities relating to excluded assets); and
(c) all appointments.
4. Act binds Crown
This Act binds the Crown.
10 5. Undertaking vested in Plan B Trustees
(1) On the appointed day the undertaking of TrustWest is vested in
Plan B Trustees.
(2) On and after the appointed day a reference to TrustWest in --
(a) any instrument, caveat, transmission or survivorship
15 application; or
(b) any other document,
made, passed or executed before that day is (except to the
extent, if any, that it relates to an excluded asset, and unless the
context otherwise requires) to be read and construed as a
20 reference to Plan B Trustees.
(3) On and after the appointed day a reference to the holder for the
time being of a particular office (other than the office of a
director, secretary or auditor) within TrustWest in any
instrument made or executed before that day is (unless the
25 context otherwise requires) to be read and construed as a
reference to --
(a) the person for the time being holding office as Chief
Executive Officer of Plan B Trustees; or
page 4
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 5
(b) such other officer of Plan B Trustees as is designated
from time to time by the Chief Executive Officer or by
any other officer acting under delegation from the Chief
Executive Officer.
5 (4) Without prejudice to the generality of subsection (1) but despite
anything to the contrary in any written or other law, if any
registered estate or interest in land (being land under the
Transfer of Land Act 1893) is under this section vested in
Plan B Trustees, whether as beneficial owner, executor,
10 manager, trustee, agent or otherwise, Plan B Trustees is to be
taken to be the registered proprietor of any such estate or
interest of which TrustWest is the registered proprietor (other
than the excluded assets) and the estate or interest may be dealt
with accordingly.
15 (5) The Registrar of Titles must, upon the application of Plan B
Trustees and the payment of the appropriate fee under the
Transfer of Land Act 1893, register Plan B Trustees as the
proprietor of the estate or interest in land in the State (being
land under the Transfer of Land Act 1893) that has vested in the
20 applicant under this section.
(6) An instrument relating to land (being land under the Transfer of
Land Act 1893) that has vested in Plan B Trustees under this
section must, if the instrument is executed by Plan B Trustees
and is otherwise in registrable form, be registered by the
25 Registrar of Titles upon the payment of the appropriate fee
under the Transfer of Land Act 1893, notwithstanding that
Plan B Trustees has not been registered as the proprietor of the
land under subsection (5).
(7) If for any reason a liability to TrustWest immediately before the
30 appointed day remains a liability to TrustWest on or after that
day, TrustWest has and may enforce the same rights in respect
of that liability (including rights under any security relating to
the liability) as if this Act had not been enacted.
page 5
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 6
6. Supplementary provisions as to vesting of undertaking
(1) Without prejudice to the generality of any other provision of
this Act, subsections (2) to (12) have effect on and after the
appointed day.
5 (2) An instruction, appointment, order, direction, power of attorney,
mandate or authority given to TrustWest (other than in relation
to an excluded asset) and in force immediately before the
appointed day is to be taken to have been given to Plan B
Trustees.
10 (3) An instrument given or addressed to TrustWest (other than in
relation to an excluded asset or an asset acquired or liability
incurred on or after the appointed day), on or after the appointed
day is to be taken to have been given or addressed to Plan B
Trustees.
15 (4) A security held by TrustWest as security for a debt or other
liability owed to TrustWest incurred before the appointed day is
available to Plan B Trustees as security for the discharge of that
debt or liability and, if the security extends to future or
prospective debts or liabilities, is available as security for the
20 discharge of debts owed to or liabilities to Plan B Trustees and
incurred on or after the appointed day.
(5) In relation to a security to which TrustWest is entitled or subject
immediately before the appointed day, Plan B Trustees is
entitled to all the rights and priorities (however arising) and is
25 subject to all liabilities to which TrustWest would have been
entitled or subject if this Act had not been enacted.
(6) All the rights and liabilities of TrustWest as bailee of documents
or chattels to which TrustWest is entitled or subject immediately
before the appointed day are transferred to and assumed by
30 Plan B Trustees.
page 6
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 6
(7) A negotiable instrument or order for payment of money which,
immediately before the appointed day, is drawn on or given to
or accepted or endorsed by TrustWest, or payable at a place of
business of TrustWest, is to be taken as having the same effect
5 on or after the appointed day as if it had been drawn on or given
to or accepted or endorsed by Plan B Trustees instead of
TrustWest, or was payable at the place of business of Plan B
Trustees.
(8) The relationship between TrustWest and a client, beneficiary or
10 depositor of TrustWest immediately before the appointed day
becomes a relationship of the same nature between Plan B
Trustees and the client, beneficiary or depositor, and the same
rights and liabilities, including rights of set-off, exist between
Plan B Trustees and the client, beneficiary or depositor as
15 existed immediately before the appointed day between
TrustWest and the client, beneficiary or depositor.
(9) All contracts, declarations of trusts, deeds of trust,
appointments, agreements, powers of attorney, conveyances,
deeds, leases, licences, instruments, undertakings and notices
20 (whether or not in writing) entered into by, made with, given to
or by, or addressed to TrustWest (whether alone or with any
other person) before the appointed day and in effect
immediately before the appointed day are, to the extent that they
were previously binding on and enforceable by, against or in
25 favour of TrustWest, binding on and enforceable by, against or
in favour of Plan B Trustees as fully and effectually in every
respect (except to the extent that they relate to an excluded
asset) as if, instead of TrustWest, Plan B Trustees had been the
person by whom they were entered into, with whom they were
30 made, to or by whom they were given or to whom they were
addressed, as the case may be.
(10) No legal proceedings commenced before the appointed day by,
against or in favour of TrustWest are ended or otherwise
prejudiced by reason of this Act.
page 7
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 7
(11) Nothing effected by this Act --
(a) is to be regarded as placing TrustWest or Plan B
Trustees in breach of trust, contract or confidence, or as
otherwise rendering either of them liable for a civil
5 wrong;
(b) is to be regarded as placing either of them in breach of
any written or other law, or of any contractual provision,
prohibiting, restricting or regulating the assignment or
transfer of any property or the disclosure of any
10 information; or
(c) releases any surety wholly or in part from all or any of
the surety's obligations.
(12) Nothing done or suffered by TrustWest or Plan B Trustees
under this Act --
15 (a) is to be regarded as a breach of trust, contract or
confidence or any other civil wrong;
(b) is to be regarded as a breach of any written or other law,
or of any contractual provision, prohibiting, restricting
or regulating the assignment or transfer of any property
20 or the disclosure of any information; or
(c) releases any surety wholly or in part from all or any of
the surety's obligations,
if it would not have been so regarded or had that effect had it
been done or suffered by TrustWest and this Act had not been
25 enacted.
7. Rights in respect of land that is an excluded asset
(1) If immediately before the appointed day, under a lease, licence
or other contract or agreement, TrustWest has rights in respect
of the occupation or use of land, being an excluded asset, those
30 rights may, notwithstanding that there has been no assignment,
transfer, underletting or other disposition by TrustWest, be
exercised on or after the appointed day by Plan B Trustees.
page 8
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 8
(2) For the purposes of a lease, licence or other contract or agreement
relating to the occupation or use of land, TrustWest does not part
with possession of land by permitting Plan B Trustees to exercise
rights under subsection (1) in respect of the land.
5 8. Proceedings
(1) Legal proceedings to which TrustWest was a party immediately
before the appointed day may be continued by or against Plan B
Trustees.
(2) A judgment, order or award obtained by or against TrustWest in
10 legal proceedings commenced before the appointed day may be
enforced by or against Plan B Trustees.
9. Evidence
Documentary or other evidence that would have been
admissible for or against the interests of TrustWest if this Act
15 had not been enacted is admissible for or against the interests of
Plan B Trustees.
10. Transfer of employees
Despite any other provision of this Act --
(a) on the appointed day each employee of TrustWest
20 ceases to be an employee of TrustWest and becomes an
employee of Plan B Trustees but, for the purposes of
every written and other law, award, determination,
contract and agreement relating to the employment of
each such employee, the employee's contract of
25 employment is to be taken to be unbroken and the period
of the employee's service with TrustWest is to be taken
to have been a period of service with Plan B Trustees;
(b) the terms and conditions of the employment of each
transferred employee with Plan B Trustees are --
30 (i) on and after the appointed day (until varied)
identical with the terms and conditions of the
page 9
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 11
employee's employment with TrustWest
immediately before the appointed day, and are
capable of variation in the same manner as they
were immediately before that day; and
5 (ii) subject to any written or other law, award or
determination relating to those terms and
conditions, also capable of variation in the same
manner as the general terms and conditions of
employment of other persons employed by
10 Plan B Trustees are capable of variation;
(c) a transferred employee is not entitled to receive any
payment or other benefit by reason only of ceasing to be
an employee of TrustWest because of this Act;
(d) nothing in this Act, other than paragraph (c), affects
15 rights or liabilities under any provident, benefit,
superannuation or retirement fund or scheme relating to
employees of TrustWest; and
(e) a director, secretary or auditor of TrustWest
immediately before the appointed day does not become
20 a director, secretary or auditor of Plan B Trustees
because of this Act.
11. Prescribed securities
(1) If prescribed securities are vested in Plan B Trustees because of
this Act, a certificate signed by the Chief Executive Officer of
25 Plan B Trustees, or by an officer acting under delegation from
the Chief Executive Officer, stating that the prescribed
securities have so vested is, despite any written or other law or
any instrument, a sufficient duly stamped instrument of transfer
of those prescribed securities.
30 (2) Subsection (1) applies only to and in respect of prescribed
securities which when vested in Plan B Trustees will be held by
way of security.
page 10
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 12
12. Officers to register documents
The Registrar of Titles, the Registrar of Deeds and Transfers, a
mining registrar and any other person authorised by a written
law to record and give effect to the registration of documents
5 relating to transactions affecting any estate or interest in land or
other property, must take cognisance of this Act and are
empowered to record and register in the appropriate manner
such of those documents as are necessary to give effect to this
Act in relation to any land or property to which the documents
10 properly relate.
13. Protection of persons dealing with Plan B Trustees or
TrustWest
(1) No person dealing with Plan B Trustees or TrustWest (in any
capacity), nor the Registrar of Titles, nor any other person
15 registering or certifying title to land or having the power or duty
to examine or receive evidence as to title to land, is, in respect
of any dealing or transaction entered into or purporting to be
entered into by Plan B Trustees, or TrustWest --
(a) to be concerned to see or enquire into whether any
20 property the subject of the dealing or transaction
(whether or not that property is or includes an estate or
interest in land) is or is not an excluded asset; or
(b) affected by any notice, express, implied, or constructive,
that any such property is or is not an excluded asset.
25 (2) If any dealing or transaction is entered into by Plan B Trustees
with any person, in relation to or in connection with an excluded
asset, it is to be taken, in favour of that person and any person
claiming through or under that person, that Plan B Trustees has
full power and authority to enter into that dealing or transaction
30 as if the excluded asset had vested in Plan B Trustees under this
Act.
(3) If any dealing or transaction is entered into by TrustWest with
any person, in relation to or in connection with any property
page 11
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 14
which has vested in Plan B Trustees under this Act, it is to be
taken, in favour of that person and any person claiming through
or under that person, that TrustWest has full power and
authority to enter into that dealing or transaction as if the asset
5 were an excluded asset.
(4) Nothing in this section affects the liability of Plan B Trustees, or
TrustWest, or either of them, in respect of anything done or
purporting to have been done, by Plan B Trustees or TrustWest,
as the case may be, in relation to or in connection with an
10 excluded asset or any other property.
14. Vesting of TrustWest common trust funds in Plan B
Trustees
Without prejudice to any other provision of this Act, on and
after the appointed day all contracts, choses in action,
15 engagements, mortgages, and assets and liabilities of TrustWest
in its capacity as trustee of --
(a) an Estate Common Trust Fund established by it under
section 19 of the Trustee Companies Act 1987; or
(b) an Investment Common Trust Fund established by it
20 under section 20 of the Trustee Companies Act 1987,
is vested in Plan B Trustees as trustee of the Estate Common
Trust Fund or Investment Common Trust Fund (as the case may
be) and is to be held by Plan B Trustees upon the same terms,
covenants and conditions as those upon which they were held
25 by TrustWest immediately before the appointed day.
15. Amendment of Trustee Companies Act 1987
Schedule 1 to the Trustee Companies Act 1987* is amended as
follows:
(a) by deleting "LAMP Management Limited." and
30 "Trustees of Western Australia Limited.";
page 12
Trustees of Western Australia Limited (Transfer of Business) Bill 2002
s. 15
(b) by inserting, in the appropriate alphabetical position --
" Plan B Trustees Limited. ".
[* Reprinted as at 1 November 1999.
For subsequent amendments see 2000 Index to Legislation
5 of Western Australia, Table 1, p. 464-5, and Act No. 10 of
2001.]
page 13
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