Trustee Act Amendment Act 1902 (NSW)

Act No. 98, 1902.

T rustee A ct

A m en d m en t . AnfAct to amend the law relating to trustees

and tru s t property. [12^^ December, 1902.]

“O E it enacted by the King’s Most Excellent Majesty, by and

,13 with the advice and consent of the Legislative Council and

Legislative Assembly of New South M^ales in Parliament assembled, and by the authority of the same, as follows :—•

Short title and	1. This Act may be cited as the “ Trustee Act Amendment Act, 1902,” and shall be read with the Trustee Act, 1898, hereinafter called the Principal Act, and its provisions shall apply to all deeds, wills, acts, or other instruments or trusts executed, passed, or created, as well before as after the passing of this Act, unless a contrary intention is expressed therein.
operation.

PAET I.

Investments by trustees.

Accepting a short

2. A ti’ustee shall not be chargeable with breach of trust upon

the ground that in effecting the purchase of or in lending money upon

’ the security of any property he has accepted a shorter title than the title wdiich a purchaser is, in the absence of a special condition, entitled to require, if in the opinion of the Court the title accepted be such as a person acting with prudence and caution Avould have accepted.

Loss by reason of	3. Where a trustee improperly advances trust money on a
lending too much

authorised security.	mAhirr?sed°8ecurit̂ ̂ mortgage secuilty which Avould at the time of investment be a proper
Ibid. s. 9.' investment in all respects for a smaller sum than is actually advanced

thereon, the security shall be deemed an authorised investment for the smaller sum, and the trustee shall only be liable to make good the sum advanced in excess thereof Avith interest.

To apply to cxisitng	4. This part of this Act applies to transfers of existing securities as well as to new securities, and to investments made as Avell before as after the commencement of this Act, except where a suit or other proceeding has been instituted AAuth reference thereto before the commencement of this Act and is still pending.
securities and
investments.

PAET

L..

Act No. 98, 1902.	663
Trustee Act Amendment.

PAET II.

Appointment and retirement o f trustees.

5. (1) Where there are more tlian two trustees, if one of them Retirement of

by registered deed declares that ho is desirous of being discharged

from tlie trust, and if his co-trustees and such other person, if any, as	5G and 57 Vic. c. 53,
s. 11 .
is empowered to appoint trustees, consent by the same or other registered deed to the discharge of the trustee and to the vesting in the co-trustees alone of the trust property, then the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall by the deed be disebarged tberefrom under this Aet without any new trustee being appointed in his place.
(2) Upon the discharge of such trustee all the trust property lioth real and personal which is jointly vested in the continuing and retiring trustees shall, save as hereinafter mentioned, by virtue of the execution and registration of the said deed and without other assurance in the law be divested from the retiring trustee and be conveyed, assigned, and transferred to and be legally vested in tbe continuing trustees alone, wdio shall be entitled to sue for and recover and to call for a transfer to them of all debts and choses in action subject to tbe trusts :
Provided that where any portion of the trust property is subject to the provisions of the Mining Acts, the Crown Lands Acts, or the Ileal Property Act, 1900, the necessary and appropriate transfers shall be executed and registered so as to transfer such property to the continuing trustees alone, and until such transfers are so executed and registered the retiring trustee shall not be discharged from the trusts in respect of such portion of the trust property.
(3) Two or more trustees may retire concurrently under this section provided there be left at least two continuing trustees to perform the trust.

6. The ju'ovisions relating to the appointment of new trustees intorprctation of

by the last retiring trustee in section six of the Principal Act shall Tnisteê Acfisiŵ

be deemed to authorise and to have authorised all the trustees or the

’

last two or more trustees of any trust to retire concurrently and

appoint new trustees in their place.

7. Notwithstanding anything contained in the Perpetual Adrertisements of

Trustee Company (Limited) Act or the Permanent Trustee Company

(Limited) Act it shall not Ide necessary to advertise in any newspaper companies,

notice of any application for the appointment or the consent of the

Chief Judge in Equity to the appointment of either of the said

companies as trustees where all persons beneficially interested are

before the Court or have had notice of the intended application to the

Court or Judge, and in any such case in which the Court or a Judge in

Equity directs any reference to the Master in Equity to appoint a new

trustee

664   Act No. 98, 1902.

Trustee Act Amendment.

trustee eitlier of the said companies may be appointed by the Master in the same way as any other trustee may he appointed without the necessity for any reference back to the Court.

Court may st notion 8. The powci’ to appoint ncw trustccs and to make vesting to liavc authorised the Court, upon the retirement of one or more of a number of trustees, to reappoint the continuing trustees alone as new trustees, and whether such reappointment is made or not to make a vesting order of the trust property in such continuing trustees alone.

withoirnppointm̂ ^̂	contained in the Principal Act shall be deemed to authorise and
of a succcsscr.

PAET III .

T elie f from breaches o f trust.

Trustees, executors, 9. (1) If it appears to tlic Court that a trustee is or may he Xy'be’̂ reiifr'cd”” personally liable for any breach of trust, whether the transaction

from breaches of alleged to 1)6 a hi’eacli of trust occurred before or after the passing of

_ this Act, but has acted honestly and reasonably and ought fairly to be

.9^and GO Vic., c, 3o, £ g j. ^ .pg P r e ^ g p g f trust and for omitting to obtain the direction

of the Court in the matter in which he committed such breach, then the Court may relieve the trustee either wholly or partly from personal liability for the same.

(2) In this section the term “ trustee” shall include executors

and administrators, and in the case of executors and administrators the powers of the Court may be exercised by the Supreme Court in its probate jurisdiction as well as in Equity.

PAET IV.

Improvements o f trust property.

The Court may

sanction 10. (1) Where any leasehold or freehold lands are vested in

improvements of

trustees in trust for any infant, or in trust for any persons in succession,

trust property.

the Court may order that the trustees be at liberty to expend a sum

to he named in such order—■

(a)	in effecting such repairs to any existing buildings, dams, fences, or other erections upon the lands ; or
(b)	in effecting such improvements of or upon the lands, or such reconstruction, enlargement, or improvement of any existing buildings, dams, fences, or other erections thereon; or
(c)	in erecting new buildings, dams, fences, or other erections upon the lands,

as the Court may think expedient, having due regard to the interest of all persons beneficially interested therein, although the proposed expendi­ ture may not he necessary for the purpose of salvage of the property.

(2)

Act No. 98, 1902.	665
Trustee Act Amendment.

(2) The Court may authorise the trustees to raise tlic moneys Money, how raised,

so authorised to be expended by mortgage of such lands, or sale of a part thereof, or by mortgage or sale of any other real or personal property held by the trustees upon the same trusts, or to pay the said moneys out of any moneys under the control of the trustees and held by them upon the same trusts, or to provide the said moneys partly in one and partly in another of the said modes, as to the Court seems fit.

(3) When the money required is authorised to he raised by Directions for

mortgage the Court may give directions to the trustees how the of

principal and interest are to be paid, and may require a sinking fund

to he provided for so as to enable any such mortgage to he paid, off at

any stated period according to the nature of the object for which the

money is required, and in every case the Court shall give such directions

as ap])car necessary and proper, so as to throw upon the respective

interests of the persons beneficially interested their proper proportion

of the moneys to be expended, and in any case where money is authorised

to he expended upon leasehold lands such direction may include

provision for a sinking fund.

(4) No purchaser or mortgagee paying or advancing money Puroimsor not bound

upon any sale or mortgage authorised by the Court under this section

“'d'nre-

shall he required to see to the application of the purchase money or

mortgage money.

(5) Applications to the Court under this section may be Procedure,

made by originating summons, and the rules and practice of the Court from time to time applying to the practice upon originating summons shall apply to applications hereunder.

(6) In this section the word “ trustees ” includes executors

and administrators.

Act