Trustee Companies Act 1964 Trustee Companies Regulation 1994 (1994-448) [GG No 108 of 26.8.1994] (NSW)

1994—No. 448

TRUSTEE COMPANIES ACT 1964—REGULATION

(Trustee Companies Regulation 1994)

NEW SOUTH WALES

[Published in Gazette No, 108 of 26 August 1994]

HIS Excellency the Governor, with the advice of the Executive Council, and in pursuance of the Trustee Companies Act 1964, has been pleased to make the Regulation set forth hereunder.

J. P. HANNAFORD, M.L.C.,

Attorney General.

Citation

1. This Regulation may be cited as the Trustee Companies Regulation

1994.

Commencement

2. This Regulation commences on 1 September 1994.

Definitions

3. (1) In this Regulation:
“the Act” means the Trustee Companies Act 1964.

(2) In this Regulation, a reference to a Form is a reference to a Form

set out in Schedule 2.

Services for which management fees may be charged

4. For the purposes of section 19 (1) of the Act, the services specified in Schedule 1 are prescribed as services in respect of which a trustee company is entitled to receive management fees.

1994—No. 448

Maximum trust fees

5. (1) The object of this clause is to fix the maximum trust fee chargeable by a trustee company in respect of an estate that is committed to its administration or management.

(2) For the purposes of section 19B (2) (b) of the Act, the prescribed mount is $590.

Financial statement of trustee company

6. For the purposes of section 29D (1) of the Act, the prescribed form for a financial statement prepared by a trustee company is Form 1.

Minimum amount of indemnities to be taken out by certain trustee companies

7. (1 ) The object of this clause is to fix the minimum amount of

indemnity to be maintained, whether by means of an insurance policy or a

bank guarantee lodged with the Attorney General, by certain specified

trustee companies.

(2) For the purposes of section 36A (1) (a) and (b) of the Act, the mount prescribed:

(a) for Perpetual Trustees Australia Limited, is $30 million; and
(b) for the Permanent Trustee Company Limited, is $25 million; and
(c) for the Perpetual Trustee Company Limited, is $25 million; and
(d) for National Australia Trustees Limited, is $20 million; and

(e) for NZ Guardian Trust Australia Limited, is $20 million.

Repeal and savings

8. (1) The Trustee Companies Regulation 1980 is repealed.
(2) Any act, matter or thing that had effect under the Trustee

Companies Regulation 1980, immediately before its repeal, is taken to have effect under this Regulation.

1994—No. 448

SCHEDULE 1—SERVICES FOR WHICH MANAGEMENT FEES

MAY BE CHARGED

(Cl. 4)

1. Administration or management of assets located interstate or overseas.
2. Inspection of and report on real or personal estate.
3. Arranging for and supervising repairs to real estate.

4. Valuation of assets.

5.

Preparation and lodgment of returns for: (b) land tax; or

(c) death and estate duties (other than those required for the original grant of probate or letters of administration).

6. Furnishing information for the purpose of any proposed dealing with a beneficial interest or for registering a notice of charge or other dealing.

7. Re-arrangements of transactions necessary as a result of requests or deeds entered into by the beneficiaries.

8. Engagement in litigation (other than litigation arising from any default or neglect by the trustee company).

9. Keeping books of accounts (including the preparation of balance sheets and profit and loss accounts) of any business, except where the trustee company also carries on the business.

10. Applying, in good faith, for a grant of probate or letters of administration if the application is not granted due to circumstances beyond the control of the trustee company.

11. Forming companies or restructuring existing companies for the benefit of existing beneficiaries.

12. Duties involved in joint tenancies.

13. Attendances outside the offices of a trustee company (other than those in connection with making inquiries for the purpose of applying for a grant of probate or letters of administration).

14. Inquiries for missing or unnamed beneficiaries.

15. Passing of accounts with Registrar in Probate where the trustee company is acting as co-executor or co-administrator.

16. Collecting rent on behalf of an estate (not being an estate in respect of which the trustee company charges a commission under section 18 of the Act on the rent received on account of the estate).

17. Carrying on of a business which belongs wholly to an estate or in which an estate has an interest as partner.

1994—No. 448

SCHEDULE 2—FORMS

Form 1

(Cl. 6)

FINANCIAL STATEMENT BY A TRUSTEE COMPANY

(Trustee Companies Act 1964)

............................................................................................. (“the company”)

in accordance with a resolution of the directors of the company, states:
1. That on ......................................................................................... (note 1)

(hereinafter referred to as “the balance date”):

The authorised capital of the company was $ ............................. divided into

............................................................................ shares of $ ............. each.

The issued capital was made up of ........... shares of $ ........... each paid to

$ ............... per share.

The total amount of paid up capital was $ ................

The uncalled capital being $ ............ per share and amounting to $ ............. was made up as follows:

$ ............. per share amounting to $ ............. which may be called up at the
discretion of the company.
$ ............. per share amounting to $ ............. which can only be called up on
and for the purpose of the winding up of the company (reserve liability).

Calls to the amount of $ ...... per share amounting to $ ...... had been made but remained unpaid and the shares had not been forfeited.

The net tangible assets of the company (i.e. the amount calculated by deducting total liabilities from total tangible assets) amounted to $ ...................

2. That the following loans were obtained from financial institutions other than banks and insurance companies during the period of 6 months preceding the balance date:

Name of	Amount of loan Term of loan	Interest rate	Security (if
institution	$’000	and maturity	applicable)

date

1994—No. 448

3. That the following contingent liabilities existed at the balance

date (show the amounts where they can be quantified):

$’000

Guarantees of liabilities of related parties ...........................
Guarantees of liabilities of other persons ............................

Other contingent liabilities (note 2) ...................................

TOTAL

4. That the guarantees of liabilities of related parties (note 3) stated above were made up

as follows:

Name of related party Amount
$’000

TOTAL

5. That the nature and amount of credit and standby facilities available to the company as at the balance date, a summary of the restrictions affecting those facilities and the duration of each of those facilities were as described below:

Nature of Summary of Duration Amount of Amount of

facility restrictions facility facility unused

available to	at balance
the company	date

$’000	$’000
TOTAL

1994—No. 448

6. That the balance sheet as at .................................... (note 1) and the profit and loss

account for the 6 months ended on that date were as follows:

BALANCE SHEET AS AT ..................................................

CURRENT ASSETS

$’000

Cash at bank and on hand ...................................................

Bills receivable:

bank accepted or endorsed (note 4) ...................................

other (note 4) ..................................................................

Investments in and loans to related parties (note 3):

investments (notes 4 and 5) ..............................................

loans:

secured (notes 4 and 10) ..............................................

unsecured (note 4) ........................................................

Other loans and deposits (note 6):

secured (notes 4 and 10) ..................................................

unsecured (note 4) ...........................................................

Government and semi-government securities (note 7) ..............

Shares, units, options, debentures and convertible notes:

listed on a prescribed stock exchange—market value (notes 4, 5

and 8) ..........................................................................

not listed on a prescribed stock exchange (notes 4, 5

and 8) .........................................................................

Interests in partnerships, trusts and unincorporated joint ventures
(notes 4 and 9) ...................................................................
Lease receivables (note 4) ....................................................
Property held for resale (note 4) ..........................................

Other current assets (notes 2 and 4) .....................................

TOTAL CURRENT ASSETS

1994—No. 448

NON-CURRENT ASSETS	$’000
Bills receivable:

bank accepted or endorsed (note 7) ..................................

other (note 7) ..................................................................

Investments in and loans to related parties (note 3):

investments (notes 5 and 7) ..............................................

loans:

secured (notes 7 and 10) ..............................................

unsecured (note 7) ........................................................

Other loans and deposits (note 6):

secured (notes 7 and 10) ..................................................

unsecured (note 7) ...........................................................

Government and semi-government securities (note 7) ..............

Shares, units, options, debentures and convertible notes:

listed on a prescribed stock exchange—market value (notes 5, 7
and 8) .............................................................................

not listed on a prescribed stock exchange (notes 5, 7 and 8)

Interests in partnerships, trusts and unincorporated joint ventures
(notes 7 and 9) ...................................................................
Lease receivables (note 7) ....................................................
Property held for resale (note 7) ..........................................
Intangible assets (notes 2 and 7) ..........................................

Other non-current assets (notes 2 and 7) ...............................

TOTAL NON-CURRENT ASSETS

TOTAL ASSETS

CURRENT LIABILITIES	$’000
Bank overdrafts and bank loans:

secured (note 10) .............................................................

unsecured ........................................................................

Loans from other financial institutions:

secured (note 10) .............................................................
unsecured ........................................................................

1994—No. 448

Bills payable and liabilities under promissory notes ................
Subordinated loans from related parties .................................

Clients' balances and deposits:

secured (notes 2 and 10) ..................................................

unsecured ........................................................................

Trade creditors and accrued expenses ....................................
Lease payables ....................................................................

Provisions:

income tax ......................................................................
dividends .........................................................................

other ...............................................................................

Deferred income (notes 2 and II) ........................................

Other amounts payable:

secured (notes 2 and 10) ..................................................

unsecured (note 2) ...........................................................

TOTAL CURRENT LIABILITIES

NON-CURRENT LIABILITIES	$’000
Bank overdrafts and bank loans:

secured (note 10) .............................................................

unsecured ........................................................................

Loans from other financial institutions:

secured (note 10) .............................................................

unsecured ........................................................................

Bills payable and liabilities under promissory notes ................
Subordinated loans from related parties .................................

Clients' balances and deposits:

secured (notes 2 and 10) ..................................................

unsecured ........................................................................

Lease payables ....................................................................

Provisions:

income tax ......................................................................

other ...............................................................................

Deferred income (notes 2 and 11) ........................................

1994—No. 448

Other amounts payable:

secured (notes 2 and 10) ..................................................

unsecured (note 2) ...........................................................

TOTAL NON-CURRENT LIABILITIES

TOTAL LIABILITIES

NET ASSETS/SHAREHOLDERS' FUNDS

(Total assets less total liabilities)

LESS: INTANGIBLE ASSETS

NET TANGIBLE ASSETS

PROFIT AND LOSS ACCOUNT FOR THE 6 MONTH	$'000
PERIOD ENDED ................................................... (note 1)
Operating profit (loss) .......................................................... Income tax ......................................................................... Operating profit (loss) after income tax ................................. Profit (loss) on extraordinary items after income tax ..............

NET PROFIT (LOSS)

7. That, in the opinion of the directors who have passed the resolution in accordance with which this Statement is made, the balance sheet and the profit and loss account of the company have been drawn up so as to give a true and fair view of the state of affairs of the company as at ........................ (note 1) and the profit or loss of the company for

the period ended on that date.

8. That the classification of assets and liabilities and the valuation of assets in the balance sheet are based upon the company's intentions at the balance date as to the use or disposal of those assets and the repayment of liabilities.

1994—No. 448

9. That, in the opinion of the directors who have passed the resolution in accordance
with which this Statement is made, at the date of this Statement there are reasonable
grounds to believe that the company will be able to pay its debts as and when they fall
due.

10. That during the period of 6 months preceding the balance date:

There had been the following significant changes in the nature of the principal activities of the company (note 12):

...................................................................................................................

...................................................................................................................

...................................................................................................................

...................................................................................................................

...................................................................................................................

The following items, transactions or events of a material and unusual nature affected the results of the company’s operations (note 13):

...................................................................................................................

...................................................................................................................

...................................................................................................................

...................................................................................................................

The provisions of the Trustee Companies Act 1964 and of the Trustee Companies Regulation 1994 in respect of the investment of money held by the company on trust had been complied with.

The company had complied with all other requirements of the Trustee Companies
Act 1964 and of the Trustee Companies Regulation 1994.

11. That the following matters or circumstances have arisen since the balance date and

have significantly affected or may significantly affect:

(a) the operations of the company;
(b) the results of those operations; or

(c) the state of affairs of the company, in subsequent periods (note 13):

.......................................................................................................................
.......................................................................................................................
.......................................................................................................................

.......................................................................................................................

Signed this day of 19

Signature: ........................................
Name: .............................................
Position: Director

1994—No. 448

Signed this day of 19

Signature: ........................................
Name: .............................................

Position: Director

DEFINITIONS

1 . “Current assets” means cash or other assets which would in the normal course of business be consumed or converted into cash within 12 months after the balance date.

2. “Current liabilities” means liabilities which in the normal course of business

would be due and payable within 12 months after the balance date.

3. “Non-current assets” means assets other than current assets.

4 . “Non-current liabilities” means liabilities other than current liabilities.

NOTES

1. Show the date of the last day of the 6 month period.
2. Provide details of major components if the total amount is material.

3. “Related party” includes:

(a)	a related corporation;
(b)	a director of, an executive officer of, or a secretary of, the reponing company or of a related corporation, their relatives and companies controlled by them, and any unincorporated association (including trading trust) where a material beneficial interest is held by those parties or any combination of those parties;
(c)	any party which can significantly influence the management or operating policies of the reporting company;
(d)	any party whose management or operating policies are able to be significantly influenced by the reporting company or a director, executive officer or secretary of the reporting company; and
(e)	any party whose management or operating policies are able to be significantly influenced by a third party which is in a position to exercise a similar influence on the reporting company.

“Unincorporated association” means an unincorporated joint venture,

partnership, trust or any other form of unincorporated association.

4. State at lower of cost and net realisable value.
5. Indicate types of investments by broad categories.
6. Includes mortgages.

7.  State at cost or valuation less amounts written off or provided for depreciation or permanent diminution in value.

8. “’Prescribed stock exchange” means a stock exchange referred to in

regulation 3.6.03 of the Corporations Regulations.

9. Indicate the nature and extent of the interests by broad categories.
10. Indicate the nature and extent of security by broad categories.

1994—No. 448

11.  Any unearned income is not to be included in any estimate of the gross amount of any class of debts unless the amount of unearned income so included is shown as a deduction from the estimate of the gross amount of the class of debts concerned.

12. If no change, insert “nil”. 13. If no effect, insert “nil”.

NOTES

TABLE OF PROVISIONS

1. Citation

2. Commencement
3. Definitions
4. Services for which management fees may be charged
5. Maximum trust fees
6. Financial statement of trustee company
7. Minimum amount of indemnities to be taken out by certain trustee companies
8. Repeal and savings

SCHEDULE I—SERVICES FOR WHICH MANAGEMENT FEES MAY BE

CHARGED

SCHEDULE 2—FORMS

EXPLANATORY NOTE

The object of this Regulation is to repeal and remake, without any changes in substance, the provisions of the Trustee Companies Regulation 1980 under the Trustee Companies Act 1964. The new Regulation deals with the following matters:

(a)	prescribing the services for which management fees may be charged by trustee companies (clause 4);
(b)	prescribing the maximum trust fee that a trustee company is entitled to receive in respect of an estate committed to its administration or management (clause 5);
(c)	prescribing the form of the financial statements that must be prepared by a trustee company under the Act (clause 6);
(d)	prescribing the minimum amount of indemnity that must be provided for by certain trustee companies (clause 7);

(e) prescribing other formal matters (clauses 1, 2, 3 and 8).

This Regulation is made under the Trustee Companies Act 1964, including section 37 (the general regulation making power) and sections 19, 19B, 29D and 36A.

This Regulation is made in connection with the staged repeal of subordinate legislation under the Subordinate Legislation Act 1989.

BY AUTHORITY