South Australia: Trustee Act 1936 (SA)

South Australia Trustee Act 1936 An Act relating to trustees, and for other purposes. Contents Part A1—Preliminary 1 Short title 4 Interpretation Part 1—Investments 5 Application of Part 6 Power of trustee to invest 7 Duties of trustee in respect of power of investment 8 Law and equity preserved 9 Matters to which trustee must have regard in exercising power of investment 9A Charitable trustees to consider certain advice etc 10 Powers of trustee in relation to securities 11 Power of trustee as to calls on shares 12 Power to purchase dwelling house as residence for beneficiary 13 Power of trustee to retain investments 13A Loans and investments by trustees not breaches of trust in certain circumstances 13B Limitation of liability of trustee for loss on improper investments 13C Court may take into account investment strategy in action for breach of trust 13D Power of court to set off gains and losses arising from investment 13E Transitional provision Part 2—Powers and duties of trustees Division 1—Appointment of new trustees 14 Power of appointing new trustees 14A Appointment of separate trustees 14B Appointment of additional trustees 15 Retirement of trustees 16 Vesting of trust property in new or continuing trustees Division 2—Power of trustee to delegate etc 17 Trustee's power of delegation 17A Power of delegation of members of fighting forces 18 Revocation of power of attorney not effectual as against person in ignorance 19 Trustee's ADI account 19A Power of fiduciaries as to cheques Division 3—Purchase and sale 20 Power of trustees for sale to sell by auction and convey and to set apart roads and reserves 21 Power to sell subject to depreciating conditions 23 Power to take mortgage for part purchase money 23A Deferred payment on sale of land 23B Sale after right of redemption barred 23C Power to purchase equity of redemption in lieu of foreclosure Division 4—Miscellaneous powers and liabilities 24 Power to authorise receipt of money by banker or solicitor 25 Powers of trustee as to insurance 25A Repairs to trust property 25B Power of Court to authorise alterations and repairs 25C Power of trustee as to granting leases 26 Power of trustees of renewable leaseholds to renew and raise money for the purpose 26A Power to surrender leases with onerous covenants 27 Power of trustee to give receipts 28 Power for executors and trustees to compound etc 28A Power to release equity of redemption in satisfaction of mortgage debt 28B General power of trustee to raise money 28C Application of income by trustee-mortgagee in possession 29 Distribution of estate after notice by representative or trustee 30 Liability of trustee in respect of rents, covenants etc 31 Shares with contingent liability 32 Powers of two or more trustees 33 Powers of trustees as to maintenance and accumulation 33A Power to apply capital towards advancement and benefit 34A Notice where trustee acts in two or more trusts 35 Liability of trustees 35A Investment of pecuniary bequest 35B Variation of employees' benefit fund Part 3—Powers of the Court Division 1—Appointment of new trustees and vesting orders 36 Power of the Court to appoint new trustee 37 Vesting order as to land 38 Contingent rights of unborn trustees 39 Effects of vesting order 40 Power to appoint person to convey 41 Vesting orders as to stock and choses in action 42 Persons entitled to apply for vesting orders 43 Powers of new trustee appointed by Court 44 Power to charge costs on trust estate 45 Trustees of charities 46 Orders made upon certain allegations to be conclusive evidence Division 2—Payment into Court by trustees and mortgagees 47 Payment into Court by trustees and mortgagees Division 3—Sales of trust property 48 Trustee to have power to sell or convey in certain cases 49 Power for Court to authorise purchase of trust property by trustee 50 Power to sanction sale of land or minerals separately 51 Power of trustees to dispose of land held in trust for a church 52 Power to apply proceeds of sale, mortgage, or lease 53 Power of association holding land in trust for religious purposes to dispose of same 54 Restriction of application of Act 55 Trustee may sell land with consent of Court Division 4—Relief from liability for breach of trust 56 Jurisdiction of Supreme Court in cases of breach of trust 57 Power to make beneficiary indemnify for breach of trust Division 5—Miscellaneous 58 Power to give judgment in absence of a trustee 59B Advantageous dealings 59C Power of Court to authorise variations of trust Part 4—Charitable trusts procedure 60 Applications to Supreme Court 61 Application to be accompanied by affidavit 62 Application to be heard in open court 63 Evidence may be brought by affidavit or otherwise 64 Service of application and copy of affidavit 65 Attorney-General may address court at hearing 66 Person may address court with permission of Judge 67 Powers of court in dealing with application 68 Court may order costs 69 Powers of Supreme Court may be exercised by a single Judge 69A Inclusion of non-charitable and invalid purposes not to invalidate a trust 69B Alteration of purposes of charitable trust 69C Recreational charities 69D Trusts may be charitable despite connection to government Part 5—Special provisions as to appointment of new trustees 70 This Part to be permissive 71 Application of this Part 72 Interpretation 73 Form of appointment of new trustee 74 Extension of power of appointing new trustees 75 Appointment of new trustees may be registered 76 Registration to vest estates in new trustees 77 Registered proprietors 78 Registration with power of disposition to lesser number of joint owners 79 Form of memorandum of appointment of new trustee 80 Verification of memorandum 81 Verification of memorandum in special case 82 Preservation of powers of Registrar-General 83 Preservation of liability of trustee 84 False affidavit or declaration Part 5A—Records to be kept by trustees and investigations 84A Interpretation 84B Records to be kept by trustee 84C Appointment of inspector 84D Powers of an inspector 84E Reports to be made to Attorney-General 84F Confidentiality Part 6—Miscellaneous and supplemental 85 Commission concerning person of unsound mind 86 Provisions of Act in addition to unrepealed Act 87 Application to trustee under Settled Estates Act of provisions as to appointment of trustees 89 Registration of vesting order or transfer 90 Parties entitled may apply to Court by summons 91 Advice and directions of court and commission 92 Power to make order in action or matter 93 Indemnity 94 Regulations Schedule 1—Appointment of new trustees Schedule 2—Memorandum of the appointment of new trustees Schedule 3—Verification of memorandum of appointment of new trustees Legislative history The Parliament of South Australia enacts as follows: Part A1—Preliminary 1—Short title This Act may be cited as the Trustee Act 1936. 4—Interpretation (1) In this Act (except in Part 5), unless the context otherwise requires— contingent right, as applied to land, includes a contingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of the interest or possibility is or is not ascertained; also a right of entry, whether immediate or future, and whether vested or contingent; convey and conveyance applied to any person include the execution by that person of every necessary or suitable transfer or assurance for conveying, assigning, appointing, surrendering, or otherwise transferring, or disposing of land to which he is entitled or of which he is seised or possessed, or wherein he is entitled to a contingent right, either for his whole estate or for any less estate, together with the performance of all formalities or acts required by law under the Real Property Act 1886 or otherwise for the validity or completion of the conveyance, including any acts to be performed by married women and tenants in tail for perfect conveyance and assurance under the Acts for, the time being in force in that behalf; equity of redemption includes— (a) the right to redeem property which has been conveyed or assigned by way of mortgage: (b) the estate of the owner of any property which is subject to any legal or equitable mortgage, charge or encumbrance (including a mortgage or encumbrance under the Real Property Act 1886) created otherwise than by conveyance or assignment of the property; instrument includes Act of Parliament; land includes incorporeal as well as corporeal hereditaments, and any estate or interest therein, and also an undivided share of land; lunatic means any person who has been found to be a lunatic upon inquiry by the Supreme Court, or upon a commission or inquiry issuing out of the Supreme Court in the nature of a writ of de lunatico inquirendo; mortgage and mortgagee include every estate and interest regarded in equity as merely a security for money, and every person deriving title under the original mortgagee; pay and payment, as applied in relation to stocks and securities, and in connection with the expression into court, include the deposit or transfer of the same in or into court; person of unsound mind means any person, not an infant who, not having been found to be a lunatic, is incapable from infirmity of mind of managing his own affairs; possessed includes being in receipt of income of or having any vested estate less than a life estate, legal or equitable, in possession or in expectancy, in, any land; property includes real and personal property, and any estate and interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest, whether in possession or not; representative means an executor or administrator, and includes the Public Trustee in cases where the Supreme Court has authorised him to administer the estate of a deceased person; securities includes debentures, bonds, stock, funds, shares, promissory notes and documents of any kind evidencing indebtedness; stock includes fully paid up shares, and, so far as relates to vesting orders made by the court under this Act, includes any fund, annuity, or security transferable in books kept by any company or society, or by instrument of transfer either alone or accompanied by other formalities, and any share or interest therein; Supreme Court includes a judge of the Supreme Court; transfer, in relation to stock, includes the performance and execution of every deed, power of attorney, act, and thing on the part of the transferor to effect and complete the title in the transferee; trust does not include the duties incident to an estate conveyed by way of mortgage, or to the estate or interest of a mortgagee under the Real Property Act 1886 but with these exceptions the expressions trust and trustee include implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of representative of a deceased person, and the expression trustee includes a representative of a deceased person; trustee company means a trustee company within the meaning of the Trustee Companies Act 1988. (2) Notwithstanding the Real Property Act 1886 this Act applies to land which is subject to that Act, but only to the extent necessary for carrying out the purposes of this Act. (3) Where an unincorporated body is named in an instrument establishing a trust, the persons for the time being comprising the body will be taken to have been individually named in the instrument. (4) Subsection (3) applies for the purposes of this Act but not for the purposes of interpreting the trust instrument. Part 1—Investments 5—Application of Part This Part applies to trusts created before or after the commencement of the Trustee (Investment Powers) Amendment Act 1995. 6—Power of trustee to invest A trustee may, unless expressly forbidden by the instrument creating the trust— (a) invest trust funds in any form of investment; and (b) at any time, vary an investment or realise an investment of trust funds and reinvest money resulting from the realisation in any form of investment. 7—Duties of trustee in respect of power of investment (1) Subject to the instrument creating the trust, a trustee must, in exercising a power of investment— (a) if the trustee's profession, business or employment is or includes acting as a trustee or investing money on behalf of other persons—exercise the care, diligence and skill that a prudent person engaged in that profession, business or employment would exercise in managing the affairs of other persons; or (b) if the trustee is not engaged in such a profession, business or employment—exercise the care, diligence and skill that a prudent person of business would exercise in managing the affairs of other persons. (2) A trustee must, in exercising a power of investment, comply with any provision of the instrument creating the trust that is binding on the trustee and requires the obtaining of a consent or approval or compliance with any direction with respect to trust investments. (3) Subject to the instrument creating the trust, a trustee must, at least once in each year, review the performance (individually and as a whole) of trust investments. 8—Law and equity preserved (1) Any rules and principles of law or equity that impose a duty on a trustee exercising a power of investment including, without limiting the generality of those duties, rules and principles that impose— (a) a duty to exercise the powers of a trustee in the best interests of all present and future beneficiaries of the trust; (b) a duty to invest trust funds in investments that are not speculative or hazardous; (c) a duty to act impartially towards beneficiaries and between different classes of beneficiaries; (d) a duty to take advice, continue to apply except so far as they are inconsistent with this or any other Act, or the instrument creating the trust. (2) Any rules and principles of law or equity that relate to a provision in an instrument creating a trust that purports to exempt, limit the liability of, or indemnify a trustee in respect of a breach of trust, continue to apply. (3) If a trustee is under a duty to take advice, the reasonable costs of obtaining the advice is payable out of trust funds. 9—Matters to which trustee must have regard in exercising power of investment (1) Without limiting the matters that a trustee may take into account when exercising a power of investment, a trustee must, so far as they are appropriate to the circumstances of the trust, have regard to— (a) the purposes of the trust and the needs and circumstances of the beneficiaries; and (b) the desirability of diversifying trust investments; and (c) the nature of and risk associated with existing trust investments and other trust property; and (d) the need to maintain the real value of the capital or income of the trust; and (e) the risk of capital or income loss or depreciation; and (f) the potential for capital appreciation; and (g) the likely income return and the timing of income return; and (h) the length of the term of the proposed investment; and (i) the probable duration of the trust; and (j) the liquidity and marketability of the proposed investment during, and on the determination of, the term of the proposed investment; and (k) the aggregate value of the trust estate; and (l) the effect of the proposed investment in relation to the tax liability of the trust; and (m) the likelihood of inflation affecting the value of the proposed investment or other trust property; and (n) the costs (including commissions, fees, charges and duties payable) of making the proposed investment; and (o) the results of a review of existing trust investments. (2) A trustee may— (a) obtain and consider independent and impartial advice reasonably required for the investment of trust funds or the management of the investment from a person whom the trustee reasonably believes to be competent to give the advice; and (b) pay out of trust funds the reasonable costs of obtaining the advice. 9A—Charitable trustees to consider certain advice etc (1) The trustees of a trust established wholly or partly for charitable purposes must, in the administration of the trust estate, have regard to information, representations or advice that is relevant and is given or made to the trustees in writing by a person referred to in subsection (2). (2) The following persons may give the information or advice, or make representations, to the trustees: (a) a person who is named in the instrument establishing the trust as a person who is entitled to, or may, receive money or other property for the purposes of the trust; or (b) a person who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustees before distributing or applying money or other property for the purposes of the trust; or (c) a person who in the past has received money or other property from the trustees for the purposes of the trust; or (d) a person of a class that the trust is intended to benefit. 10—Powers of trustee in relation to securities (1) If securities of a body corporate are subject to a trust, the trustee may concur in any scheme or arrangement— (a) for or arising out of the reconstruction, reduction of capital or liquidation of, or the issue of shares by, the body corporate; or (b) for the sale of all or any part of the property and undertaking of the body corporate to another body corporate; or (c) for the acquisition of securities of the body corporate, or of control of the body corporate, by another body corporate; or (d) for the amalgamation of the body corporate with another body corporate; or (e) for the release, modification or variation of rights, privileges or liabilities attached to the securities, or any of them, in the same manner as if the trustee were beneficially entitled to the securities. (2) The trustee may accept instead of, or in exchange for, the securities subject to the trust securities of any denomination or description of another body corporate party to the scheme or arrangement. (3) If a conditional or preferential right to subscribe for securities in a body corporate is offered to a trustee in respect of a holding in that body corporate or another body corporate, the trustee may, as to all or any of the securities— (a) exercise the right and apply capital money subject to the trust in payment of the consideration; or (b) assign to any person, including a beneficiary under the trust, the benefit of the right, or the title to the right, for the best consideration that can be reasonably obtained; or (c) renounce the right. (4) A trustee accepting or subscribing for securities under this section is, for the purposes of any provision of this Part, exercising a power of investment. (5) A trustee may retain securities accepted or subscribed for under this section for any period for which the trustee could properly have retained the original securities. (6) The consideration for an assignment made under subsection (3)(b) must be held as capital of the trust. (7) This section applies in relation to securities acquired before or after the commencement of the Trustee (Investment Powers) Amendment Act 1995 but subject to the instrument creating the trust. 11—Power of trustee as to calls on shares Subject to the instrument creating the trust— (a) a trustee may apply capital money subject to a trust in payment of calls on shares subject to the same trust; and (b) if the trustee is a trustee company—it may exercise the powers conferred by this section despite the shares on which the calls are made being shares in the trustee company. 12—Power to purchase dwelling house as residence for beneficiary (1) Subject to the instrument creating the trust, a trustee may— (a) purchase a dwelling house for a beneficiary to use as a residence; or (b) enter into any other agreement or arrangement to secure for a beneficiary a right to use a dwelling house as a residence. (2) Despite the terms of the instrument creating the trust, a trustee may, if to do so would not unfairly prejudice the interests of other beneficiaries, retain as part of the trust property a dwelling house for a beneficiary to use as a residence. (3) A dwelling house purchased, retained or otherwise secured for use by the beneficiary as a residence may be made available to the beneficiary for that purpose on such terms and conditions consistent with the trust and the extent of the beneficiary's interest as the trustee thinks fit. (4) The trustee may retain a dwelling house or any interest or rights in respect of a dwelling house acquired under this section after the use of the dwelling house by the beneficiary has ceased. (5) In this section— dwelling house includes— (a) any building or part of a building designed, or converted or capable of being converted, for use as a residence; and (b) any amenities or facilities for use in association with the use of a dwelling house. 13—Power of trustee to retain investments A trustee is not liable for breach of trust by reason only of continuing to hold an investment that has ceased to be— (a) an investment authorised by the instrument creating the trust; or (b) an investment properly made by the trustee exercising a power of investment; or (c) an investment made under this Part as previously in force from time to time; or (d) an investment authorised by any other Act or the general law. 13A—Loans and investments by trustees not breaches of trust in certain circumstances (1) If a trustee lends money on the security of property, the trustee is not in breach of trust by reason only of the amount of the loan in comparison to the value of the property at the time when the loan was made— (a) if it appears to the court— (i) that, in making the loan, the trustee was acting on a report as to the value of the property made by a person whom the trustee reasonably believed to be competent to give such a report and whom the trustee instructed and employed independently of any owner of the property; and (ii) that the amount of the loan did not exceed two-thirds of the value of the property as stated in the report; and (iii) that the loan was made in reliance on the report; or (b) if the trustee is insured by a prescribed body carrying on the business of insurance against all loss that may arise by reason of the default of the borrower. (2) If a trustee lends money on the security of leasehold property, the trustee is not in breach of trust by reason only that the trustee dispensed, either in whole or in part, with the production or investigation of the lessee's title when making the loan. (3) This section applies to transfers of existing securities as well as to new securities and to investments made before or after the commencement of the Trustee (Investment Powers) Amendment Act 1995. 13B—Limitation of liability of trustee for loss on improper investments (1) If a trustee improperly lends trust money on a security that would have been a proper investment if the sum lent had been smaller than the actual sum lent, the security is to be taken to be a proper investment in respect of the smaller sum, and the trustee is only liable to make good the difference between the sum advanced and the smaller sum, with interest. (2) This section applies to investments made before or after the commencement of the Trustee (Investment Powers) Amendment Act 1995. 13C—Court may take into account investment strategy in action for breach of trust If a trustee has been charged with a breach of trust in respect of a duty under this Part relating to the trustee's power of investment, the court may, when considering the question of the trustee's liability, take into account— (a) the nature and purpose of the trust; and (b) whether the trustee had regard to the matters set out in section 9 so far as is appropriate to the circumstances of the trust; and (c) whether the trust investments have been made pursuant to an investment strategy formulated in accordance with the duty of a trustee under this Part; and (d) the extent the trustee acted on the independent and impartial advice of a person competent (or apparently competent) to give the advice. 13D—Power of court to set off gains and losses arising from investment (1) The court may, when considering an action for breach of trust arising out of or in respect of an investment by a trustee where a loss has been or is expected to be sustained by the trust, set off all or part of the loss resulting from that investment against all or part of the gain resulting from any other investment whether in breach of trust or not. (2) The power of set off conferred by subsection (1) is in addition to any other power or entitlement to set off all or part of any loss against any property. 13E—Transitional provision Any provision in an Act or any other instrument (whether or not creating a trust) that empowers or requires a person to invest money in the investments authorised by the Trustee Act 1936, is to be read as if it empowered or required that person to invest that money according to the provisions of this Part as to the investment of trust funds. Part 2—Powers and duties of trustees Division 1—Appointment of new trustees 14—Power of appointing new trustees (1) Where a trustee, either original or substituted, and whether appointed by a court or otherwise, is dead or remains out of the State for more than twelve months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, then the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the representatives of the last surviving or continuing trustee, may, by writing, appoint a person or persons to be a trustee or trustees in the place of the trustee dead, remaining out of the State, desiring to be discharged, refusing or being unfit or being incapable, as aforesaid. (1a) The person, or any of the persons, by whom or with whose consent the appointment of a new or additional trustee is required to be made, may appoint himself or, as the case may be, consent to the appointment of himself as a new or additional trustee. (2) On the appointment of a new trustee— (a) the number of trustees may be increased; and (b) a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part or parts of the trust property; or, if only one trustee was originally appointed, then one separate trustee may be so appointed for the first-mentioned part; and (c) it shall not be obligatory to appoint more than one new trustee where only one trustee was originally appointed, or to fill up the original number of trustees where more than two trustees were originally appointed; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust: Provided that the Public Trustee or a trustee company may, irrespective of the original number of trustees, be appointed as a sole new trustee and the original trustee or trustees shall thereupon be discharged from the trust. Notwithstanding any other Act it shall not be necessary to obtain the consent of the Supreme Court to an appointment of the Public Trustee under this section; and (d) any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, or solely in the new trustee, as the case may require, shall be executed or done. (3) Every new trustee so appointed, as well before as after all the trust property becomes by law or by assurance or otherwise vested in him, shall have the same powers, authorities, and discretions, and be entitled to the same remuneration (if any), and may in all respects act as if he had been originally appointed a trustee by the instrument (if any) creating the trust. (4) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will, but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. (5) This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained. (6) This section applies to trusts created either before or after the commencement of this Act. (7) Nothing in this section shall give power to appoint an executor or administrator. 14A—Appointment of separate trustees (1) Where trustees or a sole trustee or the representatives of the last surviving or continuing trustee deem it expedient that a separate set of trustees or a separate sole trustee should be appointed for any part of the trust property held on trusts distinct from those relating to any other part of the trust property, then the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person or no such person able and willing to act, then the trustees for the time being or the representatives of the last surviving or continuing trustee, may by writing appoint— (a) a separate set of trustees for any part of the trust property held on trusts distinct from those relating to any other part or parts of the trust property; or (b) if only one trustee was originally appointed, a separate sole trustee for the first mentioned part of the trust property. (2) When the appointment of a separate trustee is required to be made by, or with the consent of a person other than a trustee of the trust property, that person may appoint himself or, as the case may be, consent to the appointment of himself as a separate trustee or as one of a set of separate trustees. (2a) In subsection (2) the words beneficiary and beneficiaries mean the person or persons having a beneficial interest in the property held on distinct trusts as aforesaid. (3) Where two or more trustees were originally appointed the number of separate trustees shall be not less than two: Provided that the Public Trustee or a trustee company may in any case and irrespective of the original number of trustees be appointed as a sole separate trustee. Notwithstanding any other Act it shall not be necessary to obtain the consent of the Supreme Court to an appointment of the Public Trustee under this section. (4) On the appointment of a separate set of trustees or a separate trustee any assurance or thing requisite for vesting the trust property or any part thereof jointly in the separate trustees or solely in the separate trustee, as the case may require, shall be executed or done. (5) Every trustee appointed under this section, as well before as after the part of the trust property for which he is appointed becomes by law or by assurance or otherwise vested in him shall have in relation to that part of the trust property the same powers, authorities and discretion and may in all respects act as if he had been originally appointed trustee by the instrument, if any, creating the trust. Where the original trustee or trustees were entitled to remuneration, the remuneration of the separate trustee or trustees shall be calculated on the value of the part of the trust property for which he is or they are appointed. (6) The provisions of this section relative to a continuing trustee include a refusing or retiring trustee if willing to act in the execution of the provisions of this section. (7) This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained. (8) This section applies to trusts created either before or after the commencement of the Trustee Act Amendment Act 1941. (9) Nothing in this section shall give power to appoint an executor or administrator. 14B—Appointment of additional trustees (1) The person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person, or no such person able and willing to act, then the trustees for the time being or the representatives of the last surviving or continuing trustee, may by writing appoint one or more additional trustees. (2) Every additional trustee so appointed, as well before as after all the trust property becomes by law or by assurance or otherwise vested in him, shall have the same powers authorities and discretions, and may in all respects act as if he had been originally appointed a trustee by the instrument (if any) creating the trust. (3) On the appointment of an additional trustee any assurance or thing requisite for the vesting of the trust property or any part thereof jointly in the trustees shall be executed or done. (4) This section shall apply unless the instrument (if any) creating the trust expressly provides that it shall not apply, or expressly forbids the appointment of additional trustees. (5) This section applies to trusts created either before or after the commencement of the Trustee Act Amendment Act 1942. 15—Retirement of trustees (1) Where there are more than two trustees, if one of them by deed declares that he is desirous of being discharged from the trust, and if his co-trustees and any other person who is empowered to appoint trustees, by deed consent 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 discharged therefrom under this Act, without any new trustee being appointed in his place. (2) Any assurance or thing requisite for vesting the trust property in the continuing trustees alone shall be executed or done. (3) This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained. (4) This section applies to trusts created either before or after the commencement of this Act. 16—Vesting of trust property in new or continuing trustees (1) Where a deed by which a new trustee is appointed to perform any trust contains a declaration by the appointor to the effect that any estate or interest in any land, subject to the trust, or in any chattel so subject, or the right to recover and receive any debt or other thing in action so subject, shall vest in the person or persons who, by virtue of the deed, become and are the trustee or trustees for performing the trust, that declaration shall, without any conveyance or assignment, operate to vest in that person or those persons, as joint tenants if more than one, and for the purposes of the trust, that estate, interest, or right. (2) Where a deed under the last preceding section, by which a retiring trustee is discharged under this Act, contains such a declaration as is in this section mentioned by the retiring and continuing trustees and by the other person (if any) empowered to appoint trustees, that declaration shall, without any conveyance or assignment, operate to vest in the continuing trustees alone, as joint tenants and for the purposes of the trust, the estate, interest, or right to which the declaration relates. (3) This section does not extend to land under the Real Property Act 1886 or to land conveyed by way of mortgage for securing money subject to the trust, or to any such share stock, annuity, or property as is only transferable in books kept by a company or other body, or in manner directed by or under Act of Parliament. (4) For purposes of registration of the deed in the General Registry Office the person or persons making the declaration shall be deemed the conveying party or parties, and the deed shall be deemed a conveyance made by him or them under a power conferred by this Act. (5) This section applies only to deeds executed after the twenty-third day of December, 1893. Division 2—Power of trustee to delegate etc 17—Trustee's power of delegation (1) Notwithstanding any rule of law or equity to the contrary, a trustee may, if not expressly prohibited by the instrument creating the trust, by power of attorney created by deed, delegate to any person or persons residing in the State all or any of the powers, authorities and discretions vested in him as trustee either alone or jointly with any other person or persons. (2) The persons who may be donees of a power of attorney under this section include a trustee company but not (unless a trustee company) the only other co-trustee of the donor of the power. (3) A power of attorney under this section— (a) must come into operation on or within six months after the giving of the power; and (b) shall, unless sooner terminated, terminate on the expiration of twelve months from the date on which it came into operation. (4) Before or within seven days after giving a power of attorney under this section, the donor shall give written notice of the power to— (a) each person (other than himself), if any, who under any instrument creating the trust has power (whether alone or jointly) to appoint a new trustee; and (b) each of the other trustees, if any. (5) A notice under subsection (4) must specify— (a) the date on which the power of attorney comes into operation and its duration; and (b) the donee of the power; and (c) the reason why the power is given; and (d) where some only are delegated, the powers, authorities and discretions delegated by the power of attorney. (6) Failure to comply with subsection (4) or (5) shall not invalidate any act done or instrument executed by the donee. (7) Every act done or instrument executed by the donee of a power of attorney under this section in pursuance of the power shall be as valid and effectual as if done or executed by the donor. (8) The donee of a power of attorney under this section shall, in the exercise of the powers, authorities and discretions delegated to him by the power, be regarded as a trustee. (9) The donor and donee of a power of attorney under this section shall be jointly and severally liable for any act or default of the donee. (10) This section does not limit or affect any power to appoint a new trustee in place of a trustee who has given a power of attorney under this section or any power of the Supreme Court to make any order in relation to the trustee. 17A—Power of delegation of members of fighting forces (1) Where a trustee is a member of any naval, military or air force of any part of the British Dominions the power of delegation conferred on him by section 17 of this Act shall not be limited to a term of twelve calendar months, but may be so exercised that the delegation is operative for the whole of the period of his service with any such naval, military or air force. (2) This section shall be deemed to have come into operation on the third day of September, 1939, and shall apply to any power of attorney granted on or after that day and during the continuance of any war in which the Commonwealth is engaged. Any such war shall be deemed to continue from the commencement thereof until the day of the issue of a proclamation by the Commonwealth that the war has ceased. 18—Revocation of power of attorney not effectual as against person in ignorance No revocation or avoidance (whether by operation of law or otherwise) of any such power of attorney shall be effectual as against any person dealing in good faith with the attorney in ignorance of the revocation. 19—Trustee's ADI account (1) Trustees, unless prohibited by the instrument creating the trust, and, if expressly authorised by the power of attorney so to do, their attorneys, appointed under section 17 of this Act, may, by writing signed by them, authorise any ADI to honour cheques, bills, promissory notes, and drafts drawn upon or made payable out of the account of the trust by any one or more of the trustees or attorneys, and to honour the endorsement of any one or more of the trustees or attorneys upon any cheque, bill, promissory note, or draft payable to the order of the trustees, and also to pay to any one or more of the trustees or attorneys, whether before or after maturity, all or any portion of any moneys deposited on fixed deposit. (2) Every trustee who, in person or by attorney, gives or joins in giving any such authority shall be liable for the acts and defaults of every trustee or attorney acting thereunder as if they were his own acts and defaults. (3) No revocation or avoidance (whether by operation of law or otherwise) of any such authority shall be effectual as against any ADI acting or paying money in good faith under or in pursuance of such authority in ignorance of such revocation. (4) This section and sections 17 and 18 of this Act apply only to trusts created after the twenty-first December, 1907. 19A—Power of fiduciaries as to cheques (1) Where two or more persons in a fiduciary position (other than trustees under a will, settlement or other instrument) have deposited with an ADI moneys which have been received by them as such fiduciaries, it shall be lawful for the ADI, when so authorised by those persons— (a) to pay cheques drawn on the ADI by any one or more of them or by any agent authorised by them: (b) to recognise as a valid endorsement upon any bill of exchange or promissory note payable to the order of such persons, an endorsement by any one or more of them or by any agent authorised by them. (2) Where any person in a fiduciary position (other than a trustee under a will, settlement or other instrument) has deposited with an ADI moneys which have been received by him as such fiduciary, it shall be lawful for the ADI when so authorised by that person— (a) to pay cheques drawn on the ADI by any agent authorised by the said person: (b) to recognise as a valid endorsement on any bill of exchange or promissory note payable to the order of the said person an endorsement by any agent authorised by him. (3) Nothing in this section contained shall affect any liability of any person in a fiduciary position to any person towards whom he is in a fiduciary position. (4) This section shall not be construed so as to limit in any way the operation of section 19. Division 3—Purchase and sale 20—Power of trustees for sale to sell by auction and convey and to set apart roads and reserves (1) Where a trust for sale or a power of sale of property is vested in trustees, they may sell or concur with any other person in selling all or any part of the property, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, at one time or at several times, subject to any such condition respecting title or evidence of title or other matter as the trustees think fit, with power to vary any contract for sale, and to buy in at any auction, or to rescind any contract for sale, and to re-sell, without being answerable for any loss. (2) For the purpose of completing any such sale as aforesaid, the trustees shall have full power to convey or otherwise dispose of the property in question, either by way of revocation and appointment of uses, or otherwise, as may be necessary. (2a) Where the property sold or offered for sale is land the trustees may set apart or dedicate any land being portion of the trust property as roads, streets, passages, thoroughfares, squares, gardens, and reserves and for such purposes may without receiving any consideration vest the land comprising such roads, streets, passages, thoroughfares, squares, gardens and reserves in the Crown or any municipal corporation, municipal council, district council or in any public authority or other person, to be held by the Crown or the corporation, council, public authority or person for the purpose for which it was set apart. (3) This section applies only if and as far as a contrary intention is not expressed in the instrument creating the trust or power, and shall have effect subject to the terms of that instrument and to the provisions therein contained. (4) This section applies only to trusts and powers created by an instrument coming into operation after the twenty-first day of October, 1862. 21—Power to sell subject to depreciating conditions (1) No sale made by a trustee shall be impeached by any beneficiary upon the ground that any of the conditions subject to which the sale was made were unnecessarily depreciatory, unless it also appears that the consideration for the sale was thereby rendered inadequate. (2) No sale made by a trustee shall, after the execution of the conveyance, be impeached against the purchaser upon the ground that any of the conditions subject to which the sale was made were unnecessarily depreciatory, unless it appears that the purchaser was acting in collusion with the trustee at the time when the contract for sale was made. (3) No purchaser, upon any sale made by a trustee, shall be at liberty to make any objection against the title upon the ground aforesaid. (4) This section applies only to sales made after the twenty-third day of December, 1893. 23—Power to take mortgage for part purchase money (1) A trustee on the sale of trust property may leave unpaid purchase-money thereof invested upon the security of the property sold to the extent to which, if the trustee were not the vendor thereof, such property would be a proper security for the investment of the trust funds. (2) This section applies to trusts whether created before or after the commencement of this Act. 23A—Deferred payment on sale of land (1) A trustee for sale may sell land on terms of deferred payment or otherwise. (2) The terms of deferred payment may provide either for the purchase money being paid by instalments, or for the unpaid purchase money being secured by mortgage. (3) If the purchase money is to be paid by instalments, the terms upon which the land is sold shall, in addition to such other provisions as the trustee deems proper, include provisions for giving effect to the following: (a) That part of the purchase money shall be paid on the execution of the contract of sale; (b) That the balance of the purchase money shall be payable in instalments, the first not later than three years from the date of the contract of sale and the others at intervals of not more than a year being from the date on which the first instalment is payable, and shall bear interest payable half-yearly or oftener on the amount from time to time unpaid; (c) That the whole of the purchase money and interest shall be payable within a period not exceeding ten years from the date of the contract of sale; (d) That if any instalment or interest or part thereof is in arrear and unpaid for six months or for such less period as may be specified, the whole of the purchase money and interest thereon calculated up to the day of payment shall become due and payable; (e) That the purchaser will maintain and protect the land and all buildings (if any) thereon and keep all such buildings insured against loss or damage by fire to the full insurable value thereof. (4) If the unpaid purchase money is to be secured by mortgage, the terms upon which the land is sold shall, in addition to such other provisions as the trustee deems proper, include provisions for giving effect to the following: (a) That part of the purchase money shall be paid on the execution of the contract of sale; (b) That the unpaid purchase money shall be secured by a registered mortgage of the land sold, with or without the security of any other property, and shall bear interest payable half-yearly or oftener on the amount from time to time unpaid; (c) That the mortgage shall contain covenants by the mortgagor to pay the principal money secured and the interest thereon, to maintain and protect the property, and to keep all buildings, if any, thereon insured against loss or damage by fire to the full insurable value thereof. (5) Whether the purchase money is to be paid by instalments or the unpaid purchase money is to be secured by mortgage the trustee shall not be deemed to be lending money within the meaning of section 10 of this Act so as to be bound to act in accordance with the provisions of that section, and shall not be liable for any loss which may be incurred by reason only of the fact that the part of the purchase money to be paid by instalments or secured by mortgage is insufficiently secured. (6) The part of the purchase money to be paid on the execution of the contract of sale shall not be less than the sum which a person acting with prudence would, if the land were his own, have accepted in the circumstances in order to sell the land to the best advantage. (7) The trustee shall not be bound to require payment of any greater part of the purchase money before letting the purchaser into possession, or before conveying the land and taking a mortgage back, than a person acting with prudence would, if the land were his own, have considered sufficient: Provided that the trustee shall not convey the land and take a mortgage back until at least one-tenth of the purchase money has been paid. (8) Notwithstanding that the purchase money is to be paid by instalments, the trustee may at any time after one-tenth of the purchase money has been paid convey the land and take a mortgage back in any case where a person acting with prudence would, if the land were his own, have been willing in the circumstances to do so; and in any such case the mortgage shall be in accordance with paragraphs (b) and (c) of subsection (4) of this section, and the provisions of subsection (5) of this section shall apply to it. (9) Any mortgage under this section may be for any period not exceeding ten years from the date of the contract of sale. (10) The trustee may, on such terms, if any, as he deems proper by writing waive or vary any right arising from failure to comply with any term of the contract of sale or of any mortgage under this section within the proper time, and may exercise in relation to any such mortgage or agreement any of the powers conferred by sections 13A, 13B, and 13C of this Act. (11) Where the sum payable under or secured by any such agreement or mortgage (being an agreement or mortgage of or in respect of real property whether freehold or leasehold) does not exceed two-thirds of the whole purchase price, or has been reduced by payment to an amount not exceeding two-thirds of the whole purchase price, that agreement or mortgage, as the case may be, may be held and dealt with by the trustee as though it were an investment authorised by law. (12) Where the sale is made under the order of the Supreme Court, the provisions of this section shall apply, unless the Supreme Court, or, on any reference to the Master, the Master shall otherwise direct. (13) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained. (14) This section applies to trusts created either before or after the commencement of the Trustee Act Amendment Act 1941. 23B—Sale after right of redemption barred (1) Where any property which has been mortgaged to a trustee becomes vested in the trustee discharged from the equity of redemption, the trustee shall hold the property as an authorised investment on trust for sale, with power to postpone the sale for such a period as he may think proper. (2) The net proceeds of sale, after payment of costs and expenses, shall be applied in like manner as the mortgage debt, if received, would have been applicable, and the income of the property until sale shall be applied in like manner as the interest, if received, would have been applicable. (3) This section shall not affect any rule of law relating to the apportionment of capital and income between tenant for life and remainderman. (4) This section shall not affect the right of any person to require that, instead of a sale, the property shall be conveyed to him or in accordance with his directions, or any power of the trustee to appropriate the property in specie to any beneficiary. (5) This section applies whether the property is discharged from the equity of redemption by virtue of the statutes of limitation or an order for foreclosure or the purchase of the equity of redemption or otherwise. 23C—Power to purchase equity of redemption in lieu of foreclosure A trustee unless expressly forbidden by the instrument, if any, creating the trust, in lieu of proceeding to foreclosure may with moneys held upon the same trusts as the mortgage debt purchase the equity of redemption of land in the State the subject of a mortgage held by the trustee under which default has been made: Provided that— (a) before purchasing any such equity of redemption the trustee shall obtain a report as to the value thereof from a person whom the trustee reasonably believes to be competent to give a report upon that value, and who is employed independently of the owner of the equity of redemption; and (b) the price paid for the equity of redemption shall not be more than the value thereof as so reported to the trustee. Division 4—Miscellaneous powers and liabilities 24—Power to authorise receipt of money by banker or solicitor (1) A trustee may appoint a solicitor to be his agent to receive and give a discharge for any money or valuable consideration or property receivable by the trustee under the trust, by permitting the solicitor to have the custody of, and to produce, a deed having in the body thereof or endorsed thereon a receipt for such money, consideration, or property, the deed being executed or the endorsed receipt signed by the trustee. (2) A trustee shall not be chargeable with breach of trust by reason only of his having made or concurred in making any such appointment. The producing of any such deed by the solicitor shall be sufficient authority to the person liable to pay or give the consideration, or transfer or deliver the property, for his paying, giving, transferring, or delivering the same to the solicitor, without the solicitor producing any separate or other direction or authority from the trustee. (3) A trustee may appoint an ADI or a solicitor to be his agent to receive and give a discharge for any money payable to the trustee under or by virtue of a policy of assurance, by permitting the ADI or solicitor to have the custody of and to produce the policy of assurance with a receipt signed by the trustee, and a trustee shall not be chargeable with a breach of trust by reason only of his having made or concurred in making any such appointment. (4) If a trustee permits any such money, valuable consideration, or property to remain in the hands or under the control of the ADI or solicitor for a period longer than is reasonably necessary to enable the ADI or solicitor (as the case may be) to pay or transfer the same to the trustee, nothing in this section shall exempt him from any liability which he would have incurred if this Act had not been passed. (5) This section applies only where the money or valuable consideration or property is received after the twenty-third day of December, 1893. (6) Nothing in this section shall authorise a trustee to do anything which he is in express terms forbidden to do, or to omit anything which he is in express terms directed to do, by the instrument creating the trust. 25—Powers of trustee as to insurance (1) A trustee may insure any building or other insurable property against loss or damage whether by fire or otherwise and against any risk or liability against which it would be prudent for a person to insure if he were acting for himself. (2) The amount for which any property is insured (including any amount of insurance already on foot) shall not exceed the full value of the property: Provided that the full value shall not be limited for the purposes of this section to the sale value of the property but shall include the replacement cost as at times material as well as indemnity against loss of rent and other collateral risks. (3) A trustee may pay the premiums for such insurance out of any income from the property insured or out of the income of any other property subject to the same trusts, without obtaining the consent of any person, notwithstanding that there may be a person entitled wholly or partly to such income. (4) If there is no such income or to the extent to which such income is deficient (for which purpose all other outgoings payable from such income whether discretionary or not may be brought into account by the trustee) the trustee may borrow the necessary money for paying the premiums and may give security over the property insured or over any other property subject to the same trusts. The principal of the money so borrowed and the interest thereon shall be repaid out of any income from the property insured or out of the income of any other property subject to the same trusts, if there is any such income available for the purpose; and if there is no such income, or if such income is insufficient, the said principal and interest, or, as the case may be, that part of the said principal and interest which is in excess of the income available for payment thereof, shall be repaid out of the capital of any property subject to the same trusts. (5) Where a policy of insurance against the loss or damage of any property subject to a trust, whether by fire or otherwise, has been kept up under any trust in that behalf, or under any power statutory or otherwise, or in performance of any obligation statutory or otherwise, the money receivable by a trustee under the policy shall except to the extent to which it is receivable in respect of loss of rent or other collateral risk as aforesaid, be capital money for the purposes of the trust. (6) If the money is receivable in respect of property held upon trust for sale, it shall be held upon the trusts and subject to the powers and provisions applicable to money arising by a sale under the trust. (7) In any other case the money shall be held upon trusts corresponding as nearly as may be with the trusts affecting the property in respect of which it was receivable. (8) Notwithstanding subsection (6) of this section, and whether the property in respect of which the money is receivable is held upon trust for sale or not, the money or any part thereof may also be applied by the trustee, or, if in Court, under the direction of the Court, in rebuilding, reinstating, replacing, or repairing the property lost or damaged. (9) Any such application by the trustee shall be subject to the consent of any person whose consent is required by the instrument, if any, creating the trust to the investment of money subject to the trust. (10) Nothing in this section shall prejudice or affect the right of any person to require the money or part thereof to be applied in rebuilding, reinstating or repairing the property lost or damaged. (11) Nothing in this section shall prejudice or affect the rights of any mortgagee lessor or lessee, whether under any statute or otherwise. (12) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained. (13) This section applies to trusts created and to policies issued either before or after the commencement of the Trustee Act Amendment Act 1941 but only to money received after that commencement. 25A—Repairs to trust property (1) Unless prohibited by the terms of the trust the trustee at his discretion may— (a) execute or cause to be executed all repairs to any buildings erections or fixtures being part of the trust property which repairs in the opinion of the trustee are necessary or proper for the preservation of the buildings erections or fixtures or to render them tenantable: (b) pay and satisfy all rates taxes charges assessments or impositions (including arrears) assessed or imposed on or in respect of the trust property or any part thereof whether payable by the landlord or tenant or owner or occupier in respect thereof: (c) pay the moneys required for the purposes mentioned in paragraphs (a) and (b) out of any moneys whether capital or income which are subject to the same trusts as the property repaired or in respect whereof the said rates taxes charges assessments or impositions are paid: (d) debit the moneys so paid to capital or income or adjust the same between capital and income in such manner as to the trustee shall seem equitable. (2) Upon the application of an interested party of which application notice shall be given to the trustee and to such other parties as the Supreme Court may think to have a sufficient interest in the subject matter of the application, the Supreme Court in its discretion may review any such debit or adjustment and may direct how the payments made as aforesaid shall be borne between the parties interested in the trust property. On any such application there shall be no presumption that the trustee has exercised his discretion under paragraph (d) of subsection (1) of this section properly. (3) On the application of the trustee, of which notice shall be given to the person intended to be affected, the Supreme Court may in its discretion order that the whole or any portion of the moneys paid by the trustee under this section shall be paid by any beneficiary under the trust who the court in its discretion thinks should be made personally liable therefor. (4) Nothing in this section shall relieve a trustee from any liability in respect of any breach of trust: Provided that a trustee shall not be liable for any breach of trust because of an honest although erroneous exercise of discretion under paragraph (d) of subsection (1) of this section. 25B—Power of Court to authorise alterations and repairs (1) The Supreme Court may on the application of a trustee or of a beneficiary interested in the trust property authorise or direct the expenditure by the trustee of such sum or sums as the court thinks fit out of the capital or income of the trust property or both or out of any part or parts thereof in and for building or rebuilding or repairing, reinstating, altering, adding to or in any way improving the trust property or any part thereof. (1a) The Supreme Court may require that notice be given of an application under subsection (1) to any person who has, in the opinion of the Court, a proper interest in the matter (but an order may be made, if the Court thinks fit, although no notice has been given of the application). (2) If there is no ready money available for the said purposes or to the extent that the ready money is insufficient, the Supreme Court may authorise or direct the trustee to sell any part of the trust property or to raise money upon loan by mortgage of the whole or any part or parts of the trust property for the purpose of securing such loans or otherwise and in either case upon or subject to such terms and conditions as the Court may by order authorise or direct. (3) The Supreme Court may give directions for the debiting of the expenditure (including the costs of the application to the court) incurred for the purposes of this section to capital or income or for the adjustment of the same between capital and income in such manner as the Court in its discretion thinks just. (4) This section does not apply to any building or property which a trustee is bound forthwith to convey absolutely to any beneficiary upon being requested to do so. (5) This section applies to trusts created either before or after the commencement of the Trustee Act Amendment Act 1941; but nothing in this section shall authorise the trustee to do anything which he is in express terms forbidden to do, or to omit to do anything which he is in express terms directed to do, by the instrument creating the trust. 25C—Power of trustee as to granting leases (1) A trustee may make a lease of land in possessi