Trust Accounts Acts Amendment Act of 1952 (1 Eliz Ii No. 27) (Qld)

436 TRUSTEES AND EXECUTORS. Trust Accounts Acts Amendment Act. 1 E liz . II. No. 27, TESTATOR'S FAMILY MAINTENANCE. See S uccession . TRUST ACCOUNTS. See T rustees and E xecutors . TRUSTEES AND EXECUTORS. 1 N E o l . iz 2 . 7 I . I. An Act to Further Amend “ The Trust Accounts T he T rust A ccounts A cts Act of 1923/’ in certain particulars, and for A mendment A ct of other purposes. 1952. [A ssented to 9 th O ctober , 1952.] B E it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legis­ lative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:— short title 1 . This Act may be cited as “ The Trust Accounts construction. Amendment Act of 1952,” and shall be read as one with *“ The Trust Accounts Act of 1923,” and f“ The Trust Accounts Act Amendment Act of 1925.” *“ The Trust Accounts Act of 1923” (as amended by t“ The Trust Accounts Act Amendment Act of 1925”) is herein referred to as the Principal Act. Collective title. *“ The Trust Accounts Act of 1923,” The Trust Accounts Act Amendment Act of 1925,” and this Act may collectively be cited as “ The Trust Accounts Acts , 1923 to 1952.” £-£«t 2. Section 3 a of the Principal Act is amended by 0 s' A' repealing subsection one thereof and by inserting, in lieu of that repealed subsection, the following subsection, namely:— “ (1.) Any and every trustee, who on the thirty-first day of December of any year has in his possession or under his control any property, real or * 14 G. 5 No. 4. f 16 G. 5 No. 2.

TRUSTEES AND EXECUTORS. 437 1952. Trust Accounts Acts Amendment Act. personal, movable or immovable (including any moneys or securities for money) to which some person specified (and referred to as “ the beneficiary ”) in subsection two of this section— (a) Is on that date; and (b) Was during the whole of the year ended on that date absolutely entitled shall, within thirty-one days thereafter, make to the Attorney-General a return (in writing and signed by that trustee) setting out particulars of that property.” 3. The following section is inserted after section New s. 3 b 3 a of the Principal Act, namely :— inserted. “ [3 b .] ( 1 .) In sections 3c and 3 d of this Act— (а) The term “ Trustee ” does not include a person who is a “ practitioner ” within the meaning of *“ The Queensland Law Society Acts, 1927 to 1939,” or of any Act amending or substituted for those Acts ; and (б) The term “ Public Curator ” means the public curator of Queensland as constituted by f“ The Public Curator Acts, 1915 to 1947,” or by any Act amending or substituted for those Acts.” 4. The following section is inserted after section 3 b New s. 3c of the Principal Act, as previously inserted by thismsertod- Act, namely :— “ [3c.] (I.) If the Public Curator is of opinion that When Public any truste ‘ e Curator may control (a) Is an undischarged bankrupt; or operations on trust (b) Has stolen or fraudulently misapplied anyaccounts' trust moneys; or (c) Has a general deficiency in his trust account, the Public Curator may under, subject to, and in accordance with the provisions of this section, control operations on any or all trust accounts of which that trustee is, whether solely or jointly with any other person or persons, a trustee. • * 18 G. 5 No. 14 and amending Acts, ■f 6 G. 6 No. 14 and amending Acts.

438 TRUSTEES AND EXECUTORS. Trust Accounts Acts Amendment Act. 1 E liz . II. No. 27r (2.) The Public Curator shaE serve notice in writing on— (a) The trustee concerned ; and (b) Any other person authorised to operate on any trust account in respect of which the notice is served ; and (c) The manager or other principal officer of the office or branch of the bank (as the case may be) with which any trust account in respect of which the notice is served is kept. That notice shaU state that the Public Curator requires the trust account or trust accounts specified therein to be operated on under his control. (3.) After such notice has been served on the manager or other principal officer of the office or branch of a bank (as the case may be) and until such notice ceases to be effective, whether or not a copy of such notice has been served on the trustee concerned, or on any other person, no payment shall be made by the bank on any cheque or other instrument drawn on any trust account specified in such notice unless it bears (as well as the signature of the trustee or other person authorised to operate on that trust account) the signature of the Public Curator or of a person thereunto authorised by him (it being hereby declared that the Public Curator may in writing so authorise any of his officers or agents). If that trustee or other person authorised to operate on that trust account is unwilling to operate thereon in conjunction with the Public Curator or person thereunto authorised by him, the Public Curator or, with his consent in writing, that authorised person may thereupon operate on any such trust account alone. ' A statutory declaration made by the Public Curator or person authorised by him as aforesaid and subscribed under the *“Oaths Act of 1867,” as amended by subsequent Acts, to the effect that the trustee or other person authorised to operate on any trust account is unwilling to operate thereon in conjunction with the Public Curator or the person authorised by him shaU be sufficient evidence to the trustee’s banker of such fact. * 31 V. No. 12.

TRUSTEES AND EXECUTORS. 1952. Trust Accounts Acts Amendment Act. (4.) After a notice as hereinbefore specified in this section has been served on the trustee concerned, and until such notice ceases to be effective, that trustee shall not sign any cheque or other instrument drawn on any trust account specified in the notice unless such cheque or other instrument has first been signed by the Public Curator or a person thereunto authorised by him. (5.) After such notice has been served on any person (other than the trustee concerned) who is authorised to operate on any trust account specified in the notice and until such notice ceases to he effective, that person shall not sign any cheque or other instrument drawn on any trust account specified in the notice unless such cheque or other instrument has first been signed by the Public Curator or a person thereunto authorised by him. (6.) Any trustee, or manager or principal officer or other officer of any bank, or any person authorised to operate on the trust account of a trustee (including any trustee who is authorised to operate on the trust account of another trustee) who knowingly acts contrary to the provisions of this section shall be guilty of an offence against this Act and liable to a penalty not exceeding one hundred pounds. (7.) Any trustee in respect of whose trust account a notice is served as aforesaid may appeal to a Judge of the Supreme Court in Chambers who is hereby authorised to make such order in the matter as he may think fit. (8.) A notice as aforesaid shall cease to be effective— (a) On the expiration of twelve months from the date on which it purports to have been signed by the Public Curator ; or ( b ) If the Public Curator rescinds such notice, on the date when it is so rescinded (and it is hereby declared that any such notice may be rescinded by the Public Curator) ; or (c) If a Judge on appeal orders that such notice shall cease to be effective, on the date specified by the Judge as the date on which such notice shall cease to be effective, or if no date is specified on the date of the order. 439

440 TRUSTEES AND EXECUTORS. Trust Accounts Acts Amendment Act. 1 E liz . II. No. 27r (.9.) In every case in which any such notice has ceased to be effective otherwise than by reason of the expiration of twelve months from the date of the signing thereof by the Public Curator, the Public Curator shall as soon as practicable serve on all persons who have been served therewith a further written notice that such notice has ceased to be effective. (10.) Any notice or further notice required by this section to be served upon any person, may be served— (a) By delivering it to such person; or (b) By sending it by prepaid registered post to such person at his usual place of abode or business or at his place of abode or business last known to the Public Curator. (11.) No bank, and no manager or principal officer or other officer of a bank shall incur any civil liability to any person for dishonouring or refusing or faffing to make payment on a cheque or other instrument which is drawn on a trust account in respect ofwhich the Public Curator has served a notice under this section and is not signed by the Public Curator or a person thereunto authorised by him, if such dishonour or refusal or failure to make payment occurs within twelve months after the date on which that notice purports to have been signed by the Public Curator, and before the manager or other principal officer who was served with such notice is served by the Public Curator with a further written notice that such notice has ceased to be effective.” New s. 3 d 5. The following section is inserted after section added. 3 C 0f the Principal Act, as previously inserted by this Act, namely:— Powers of “ [3 d .] (I.) If the Public Curator is of opinion that Curftor with any trustee— respect to accounts of deceased ^ trustees, e. Has died ; or (6) Is because of mental or physical illness incapable of operating on a trust account; or (c) Cannot be found, and that trustee is (or if he has died was) either solely or jointly with any other person or persons, a trustee

TRUSTEES AND EXECUTORS. 1952. Trust Accounts Acts Amendment Act. ■of any trust account, the Public Curator may, under, subject to and in accordance with the provisions of this section act as a trustee of such trust account. (2.) At least fourteen days before commencing to act, pursuant to the provisions of this section, as a trustee, written notice that any person desiring to object thereto may forward his objection in writing to the Public Curator shall be forwarded by the Public Curator by prepaid registered post to each of the following persons, at his usual place of abode or business or at his place of abode or business last known to the Public Curator, namely:— (a) The person who is the trustee of the trust account in question, if he is alive; and ( b) A person who is a partner of such trustee or was at the date of his death a partner of such trustee who has died ; and (c) If such trustee is dead, to any person who has notified the Public Curator that he is the executor or administrator of such trustee; and (d) The manager or other principal officer of the office or branch of the bank (as the case may be) with which the trust account in question is kept. (3.) The Public Curator shall consider any objections to his acting as trustee in respect of the trust account in question, but the fact that such objections have been made shall not prevent the Public Curator from so acting. (4.) If, at the expiration of the period of fourteen days after the forwarding by post of the notices specified in subsection two of this section notwithstanding objections, if any, forwarded in answer to those notices, the Public Curator determines to act as a trustee of the trust account in question the Public Curator shall forward by prepaid registered post a further notice to each of the persons to whom a notice was, in respect of the trust account in question, required by subsection two of this section to be forwarded. That notice shall state that the Public Curator will act as a trustee of the trust account specified therein. 441

442 TRUSTEES AND EXECUTORS. Trust Accounts Acts Amendment Act. 1 E liz . II. No. 27, (5.) After any such further notice has been served as aforesaid, and until it ceases to be effective, the Public Curator shall be for all purposes a trustee of any trust account specified in the further notice in place of the trustee referred to in subsection one of this section. (6.) Any of the following persons may appeal against the Public Curator acting as a trustee under this section to a Judge of the Supreme Court in Chambers (who is hereby authorised to make such order in the matter as he may think fit), namely:— (a) The trustee in whose place the Public Curator is so acting ; or (b) A person who is a partner of the trustee in whose place the Public Curator is so acting or who was at the date of his death a partner of such trustee who has died; or (c) Any other person who is a trustee of the trust account in respect of which the Public Curator is so acting ; or (d) Any person entitled as beneficiary to any part of such trust account; or (e) Any executor or administrator of a trustee who has died and in whose place the Public Curator is so acting ; or (/) Any other person aggrieved by the Public Curator so acting. (7.) A further notice as aforesaid shall cease to be effective— (a) If the Public Curator rescinds it, on the date when it is so rescinded (and it is hereby declared that any such further notice may be rescinded by the Public Curator; or (b) If a Judge on appeal orders that the Public Curator shall cease to act as trustee in respect of the trust account in question, on the date specified by the Judge as the date on which the Public Curator shall so cease or if no such date is specified on the date of the order.

TRUSTEES AND EXECUTORS. 443 1952. Trust Accounts Acts Amendment Act. (8.) In every case in which any such further notice has ceased to be effective, the Public Curator shall as soon as practicable notify by prepaid registered post each of the persons to whom a copy of the further notice was forwarded at his usual place of abode or business or at his place of abode or business last known to the Public Curator that such further notice has ceased to be effective. (9.) When the manager or other principal officer of the office or branch of any bank (as the case may be) has received from the Public Curator a further notice under this section in respect of any trust account kept with that office or branch, and such manager or other principal officer has not been notified that such further notice has ceased to be effective, such manager or other principal officer shall not be bound to enquire whether the requirements of this section have been complied with, and a bank which makes any payment in good faith in the belief that any such further notice is in force shall not incur any liability that it would not have incurred if such further notice were in force.” 6. The following section is inserted after section New s. 3 e 3 d of the Principal Act, as previously inserted by this mserted‘ Act, namely:— “ [3 e .] ( 1 .) In and for the purposes of this section—Meamng °f section. (a) The term “ contract ” includes— Contract, (i.) Any contract or arrangement (whether made orally or in writing, and whether binding at law or not) for the construction, repair, extension, alteration, renovation or painting, or for the performance of work or labour or the supply of materials for on in connection with the construction, repair, extension, alteration, renovation or painting of any dwelling-house or other fixed improvement whatsoever on any land; and (ii.) Any representation, promise or term (whether made orally or in writing and whether legally binding or not) made by a person to another that he or some other person will construct, repair, alter, extend,

444 TRUSTEES AND EXECUTORS. Trust Accounts Acts Amendment Act. 1 E liz . II. No. 27, renovate or paint, or perform work or labour or supply materials for or in connection with the construction, repair, alteration, extension, renovation or painting of a dwelling-house or other fixed Contractor. improvement whatsoever on any land; (b) The term “ Contractor ” includes— (i.) In relation to any contract or arrangement specified in paragraph (a) of this subsection, the person by whom the same is to be performed or caused to be performed; and (ii.) In relation to any representation, promise or term specified in paragraph (a) of this section, the person making the same ; and Price. (c) In relation to a contract, the term “ price ” includes consideration. Duties of contractors. (2.) A contractor who receives any money on terms requiring him to apply it in or towards defraying the price of any contract shall— (a) Pay forthwith that money into an office or branch situated in Queensland of a bank carrying on business under the authority of a Statute of the Parliament of this State or of the Commonwealth, to the credit of a general or separate trust account; ( b ) Not withdraw it or any amount of it from that trust account except as authorised by this section ; (c) Not draw against or cause any payment to be made from that trust account unless such drawing or payment is made by or on his cheque requiring payment to be made to or to the order of the person to whom the sum for which that cheque is drawn is payable and bearing across its face the words “ not negotiable ” ; (d) (Where that trust account is a general trust account) not pay to the credit thereof any money other than money required by this section to be paid to the credit thereof; (e) (Where that trust account is a general trust account) not withdraw therefrom by means of one and the same cheque moneys or parts of moneys respectively standing therein to the credit of two or more contracts; and

TRUSTEES AND EXECUTORS. 1952. Trust Accounts Acts Amendment Act. (/) (Where that trust account is a general trust account and when moneys paid in respect of two or more contracts are standing to the credit thereof) not make therefrom any drawing whereby the aggregate balance remaining to the credit of that trust account is decreased below the amount required by this section to he retained therein as at immediately after the time of that drawing. 445 (3.) Subject to compliance in all respects with the Withdrawals requirements of paragraphs (c), (d), (e) and (/) of subsection contractor two of this section, a contractor may withdraw money from trust paid by him to the credit of a trust account pursuant to account- the requirements of this section for any of the following purposes (but for no other purpose whatsoever) that is to say— (a) For paying a person other than the contractor for any work, labour, or materials actually performed or supplied for or in connection with carrying out the contract; (b) For lawful progress payments for or in connection with carrying out the contract to himself: Provided that a contractor may by his cheque requiring payment to be made to himself or his order and bearing across its face the words ‘ ‘ not negotiable” withdraw from any such trust account moneys standing therein to the credit of any contract for payment of wages due and payable to employees employed by him in the performance of that contract. Such a progress payment shall be lawful if, but only if, it is made after the contractor has commenced to perform the contract (or, if a second or subsequent such payment, if, but only if, it is made after the ' contractor has progressed further with the performance of the contract after making to himself the next preceding such payment) and is fair and reasonable having regard to the progress made in performing the contract and the previous progress payments relating thereto, if any, as at the time when made.

446 TRUSTEES AND EXECUTORS. Trust Accounts Acts Amendment Act. 1 E liz . II. No. 27, Where the lawfulness of such a progress payment is in issue in any proceeding for an offence against this section, the court hearing that proceeding shall determine that issue as a matter of law. Application of other (4.) Subsections three and four of section three of provisions this Act shall apply in respect to trust accounts required of this Act. by this section to be opened and kept by contractors. The power and authority of the Governor in Council to make regulations under this Act with respect to the keeping and audit of trust accounts (including in particular his powers in that behalf under paragraphs (a) to (/), both inclusive, (h) and (i) of subsection one of section four of this Act) shall apply in respect of trust accounts required by this section to be opened and kept by contractors. Provided that a contractor who offends against any such regulation shall be liable in respect of that offence to the penalty prescribed by this section. c cD e ou r n t tt a yr i a n ocftors. the ( e5n. ) acAtmecnont troafctothriswhseoctsiohnallanhyavemorneceeyiveodn bteefromres requiring him to apply it in or towards defraying the price of any contract shall, within one month after the enactment of this section, pay so much of that money as shall not have been duly and properly applied by him in or towards defraying the price of the contract into an office or branch situated in Queensland of a bank carrying on business under the authority of a Statute of the Parliament of this State or of the Commonwealth, to the credit of a general or separate trust account. Without prejudice to his liability to be punished as provided in this section for failing to comply with this subsection, a contractor shall, in respect of money so paid into a bank be bound by this section and liable accordingly. Offences. (6.) (a) A person who contravenes or fails to comply with any provision of this section shall be guilty of an offence. (b) A person guilty of an offence against this section shall be liable to be punished as follows, that is to say— (i.) If the offence is prosecuted summarily, a fine not exceeding four hundred pounds or imprisonment for a term not exceeding

1952. TRUSTEES AND EXECUTORS. Trust Accounts Acts Amendment Act. twelve months or, if the offender is a Corporation, a fine not exceeding two thousand pounds; or (ii.) If the offence is prosecuted upon indictment, a penalty not exceeding one thousand pounds or imprisonment for a term not exceeding three years with hard labour or, if the offender is a Corporation, a fine not exceeding five thousand pounds. (c) An offence against this section may be prosecuted in a summary way under *“ The Justices Acts, 1886 to 1949,” or upon indictment. (7.) Nothing in this section shall apply with respect to the payment in advance of wages under a contract or engagement solely for the performance of work or labour.” 447 7. Subsection one of section four of the Principal Amendments Act is amended— ofs.4(i). (a) By inserting, after paragraph (g) thereof the following paragraph, namely— “ (gl) In respect of moneys, securities and bonds deposited as prescribed by trustees by way of guarantee as aforesaid providing for the recovery of moneys so secured and the application of moneys so deposited or recovered.” (6) By repealing in paragraph ( i ) thereof the words, figure and letter “ of section 3 a ”. * 50 V. No. 17 and amending Acts.