The Union Trustee Company of Australia, Limited, Act (NSW)

The Union Trustee Company of Australia, Limited, Act. 15 THE UNION TRUSTEE COMPANY OF AUSTRALIA, LIMITED, ACT. An Act to confer powers upon the Union Trustee George v. Company of Australia, Limited. [Assented to, 11th December, 1914.] THEREAS in this State it is often difficult to Preamble. procure proper persons to undertake the onerous and responsible duties of trustee, executor, or adminis- trator: And whereas the deaths, resignations, and absence from the State of executors, trustees, and others filling similar offices are often attended with great dis- advantage and loss to the estates with the administration of which they are entrusted : And whereas it is desirable for the purpose of obtaining regularity and security in the administration of trust estates that permanent cor- porations should be empowered to fill the oflices of trustee, executor, administrator, receiver, agent, and other like offices: And whereas a certain company styled "The Union Trustee Company of Australia, Limited " (hereinafter referred to as the said company), and formed and registered under the provisions of the Companies Acts in force in the State of Victoria, has been duly registered in the State of New South Wales under the provisions of the Companies (Amendment) Act, 1899, with a capital of two hundred and fifty thousand pounds, divisible into one hundred thousand shares of two pounds ten shillings each, for the purpose of undertaking the duties of such offices as aforesaid for a commission: And whereas the said company has from time to time been engaged and is now engaged in the administration of estates comprising asscts in this State and 16 The Union Trustee Company of Australia, Limited, Act. George V. and in the State of Victoria and in other states: And whereas it is expedient that the necessary powers should be conferred upon the said company (hereinafter called the company), in order to enable it to act as executor, administrator, administrator with the will annexed, trustee, receiver, committee of the estates of persons of unsound mind, and as agents, and to perform and discharge all the duties of such offices and to receive remuneration therefor, and to confer upon the company all such privileges and powers as are necessary or expedient for the purposes aforesaid: Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows :— Company 1. Whenever the company has been or shall be may act named, either alone or jointly with any other corporation as executor : + and obtain OF any person, as executor in the last willand testament, probate. = or in the codicil to the last will and testament, of any testator, it shall be lawful for tie company to act as executor, and to apply for and obtain probate of the will of the testator, and to perform and to discharge al} other the acts and duties of an executor as fully and effectually as any other executor. Persons 2. It shall be lawful for any person or persons entitled to entitled to obtain letters of administration with the wi } of adminis. of any testator annexed of the estate of such testator to tration a . oo : C.T.A, may authorise the company, cither alone or jointly with any authorise the other corporation or any person, to apply for and to any to : oe . . } ws doo obtain letters of administration with the will annexed, which may be granted to the company upon its own application when so authorised. Persons 3. Any person or persons: named expressly or by oaeieate may implication as executors or executor who would be authorise entitled to obtain probate of the will of any testator company to without reserving leave to any other person to apply for ministration probate may instead of themselves or himself applying with will "for probate authorise the said company to apply to the Supreme Court for administration with the will annexed, and administration with the will annexed may be granted to the said company upon its own application when so authorised unless the testator shall by his will have expressed The Union Trustee Company of Australia, Limited, Act. 17 expressed his desire that the office of executor should George V. not he delegated, or that the said company should not act in the trusts of his will. 4, It shall be lawful for any person or persons Persons : . og we ee y netate entitled to entitled to obtain letters of administration of the estate ena Sens of any intestate as his or her next of kin to authorise of fop cue meats Inietpaty traction may the company to apply for such letters of administration, siinorise che either alone or jointly with any other corporation, or company to any person or persons so entitled to obtain such letters °° * of administration, and administration of the estate of the intestate may be granted to the company, cither alone or jointly as aforesaid, upon its own application when so authorised. 5. It shall be lawful for the company, where thie company on woe : : . . bei ¢ granted administration of any estate with or without the will teitrsorad ministration annexed has been granted to it, either alone or jointly with ms perionn an 4: . acts which any other corporation or any person, to do and perfornn beens the ° . . * office of ad- all acts and duties which belong to the office of the minstrator, not. withstanding in administrator, or administrator with the will annexed, inccrporaion. as the ease may he, notwithstanding its incorporation. 6. In all cases in which the company is empowered Cot to act under this Act to apply for probate or for letters of op widarit oo : . . of managing administration, an affidavit made by the managing directors, director, manager, or acting manager, shall be received, Mine instead of any affidavit required by any Charter, Act of manager, on . 5 . plication Parliament, or rule of court to be made by Persons for probate making application for probate or letters of adminis- or adminis- Fon, ravion. tration. 7. All the capital, both paid and unpaid, of which Ascts of paid-up capital twenty thousand pounds shall be invested ye" te. in the purchase of debentures or inscribed stock in such proper ad muluistration of the public funds of the State as the directors of the of estates and company may select, in the name of the Treasurer of the 2 bond to State in trust for the company, but transferable only be reyuired ° with the joint consent of the said Treasurer and_ the when paid-up company, or upon the order of the Supreme Court or a £2,000, of judge thereof, and all other assets of the company, shall ¥-%) 5, be liable for the proper administration of all estates of invested in which the company shall act as executor or administrator, Govemmen* and no bond for the due administration of any estate shall be required to be given by or on behalf of the company, except in respect of estates exceeding twenty thousand pounds in value, in which the said court or a B judge George V. Company may be appointed trustee, receiver, or guardian or committee of estate. Company may act under power of attorney by managing director, act- ing manager, or two directors. The Union Trustee Company of Australia, Limited, Act. judge thereof shail otherwise order, and all interest and income to accrue from time to time from or in respect of all such debentures and inscribed stock shall be paid by the said Treasurer to the company as and when the same shall respectively become payable. 8. It shall be lawful for any court or judge or person now or hereafter having power to appoint trustees, receivers, committees of the estates of persons of unsound mind, or guardians of the estates of infants, in any case to appoint the company, either alone or jointly with any other corporation or any person, to be trustee, receiver, committee or guardian as the case may be, and upon any such appointment all the capital of the company, both paid and unpaid, and all other assets of the company, and the managing director, manager, or acting manager, as the case may be, and the directors and their respective estates shall be liable for the proper discharge of the duties of the office cither of trustee, receiver, committee, or guardian, as the case may be, and so long as the company shall possess a paid-up capital of not less than twenty-five thousand pounds, of which paid-up capital twenty thousand pounds shall be invested as aforesaid, no bond or recognizance for the proper discharge of such duties shall be required to be given by or on behalf of the company: Provided that the company shall not be so appointed trustee of any deed or will which shall forbid the appointment of a company as trustee thereof, nor in any case in which the majority of the persons who shall be beneficially inter- ested shall not consent to such appointment, unless the consent of the chief or any other judge in equity or the judge in probate of the Supreme Court shall have been first obtained. 9. It shall be lawful for the company to act, either alone or jointly with any other corporation or any person, as attorney, whenever it shall be appointed by deed attorney for any person or any corporation, and all the powers conferred upon the company by any power of attorney may be exercised and carried into execution by the managing director, manager, acting manager, or by any two of the directors of the company ; but in all cases the capital, both paid and unpaid, and all other assets of the company, shall be liable for the due execution of the powers The Union Trustee Company of Australia, Limited, Act. powers so conferred upon the company: Provided always that nothing herein contained shall be deemed to autho- rise any person, company, or corporation to confer any power upon the company which cannot by law be delegated or performed by attorney. 10. Itshall be lawful for any executor, administrator, or trustee by deed to delegate to the company, either alone or jointly with any other corporation or any person, as his attorney all such trusts and powers as may by law be delegated, and all acts done by the company within the scope of such delegation shall, in favour of any persons dealing with the company without notice of death or revocation of authority by such executor, administrator, or trustee, be valid and effectual notwithstanding such death or revocation. 11. It shall be lawful for the Supreme Court or any judge thereof sitting in its equity or probate jurisdiction, on the application of any executor or administrator acting under any probate or letters of administration granted either before or after the coming into operation of this Act, to appoint the company, cither alone or jointly with any other corporation or any person, to be administrator in his place or stead, and thereupon the company shall have the same powers and authorities as if it had been the original executor or administrator as the case may be; and in every such case all the capital, both paid and unpaid, and all other assets of the com- pany, and the managing directors, manager, or acting manager as the case may be, and the directors and their respective estates, shall be liable for the due administra- tion of the estates of which the company shall be so appointed administrator. 12. Every application to the court or any judge shall be by motion, and notice of the intended application shall be advertised ina daily newspaper published in Sydney at least seven days before the making thereof; and if the application shall be made by the executor or adminis- trator of any testator or intestate who shall have died in New South Wales, a like notice shall also be advertised once in some newspaper, if any, published in the district in which such testator or intestate shall have resided, and the court or any judge may require any person resident in George V. Executor, adrainistra- tor, or trustee may delegate trusts to company. Ex:cutors or adwinistra- tors, with the consent of judge, may appoint com- pany to dis- charge duties. Application for consent to be by motion. George V. Managing director, manager, or acting manager may attend on behalf of com- any and shall be personally responsible to court. The Union Trustee Company of Australia, Limited, Act. in New South Wales and entitled to the immediate receipt of any of the income or corpus of the estate in respect of which the application is made to be served with notice thereof, and the costs of such application shall be in the discretion of the court or judge and may. be ordered to be paid out of the estate. 13. Whenever an executor, administrator, trustee, receiver, committee, or guardian is or shall be required by any law, charter, Act of Parliament, or rule of court to attend in person any court of justice or elsewhere, it shall be lawful for the company to attend by its managing director, manager or acting manager, and all affidavits, statements of defence, or other statements required by law to be made on oath may be made and sworn on behalf of the company by its managing director, manager, or acting manager, and whenever probate or letters of administration shall have been granted to the company, and whenever the company shall be appointed and shall act as trustee, receiver, committee, or guardian, the managing director, manager, or acting manager as the case may be, and directors in their own proper persons and estates shall be individually and collectively responsible for the due administration of the estates entrusted to the company, and shall in their own proper persons be liable by process of attachment, commitment for contempt, or by other process to all courts having jurisdiction in that behalf in the event of disobedience to the rules, orders, and decrees of such courts made against the company in the same manner and to the same extent as if such managing director, manager, or acting manager, or directors had personally obtained probate or letters of administration and had acted as executor or administrator, trustee, receiver, committee, or guardian, and asif the rule, order, or decree had been made against them personally instead of against the company ; but notwithstanding such personal responsibility of the said managing director, manager, or acting manager, or directors, the capital, both paid and unpaid, and all the assets of the company shall remain liable for any loss which may be occasioned by or which may happen through any breach of trust or duty committed by the company or any of its officers, whether such trusts or duty duty The Union Trustee Company of Australia, Limited, Act: - be implied by law or expressly conferred by the instru- ment under which the company shall act; and no person shall be appointed a direetor or manager of the said company unless he is a bona fide resident of either the State of New South Wales or the State of Victoria, and any person being a director or manager of the said company who ceases to reside in either of such states shall, upon so ceasing to reside, vacate his office, and such vacaney shall be filled up in the manner provided by the articles of association for filling casual vacancies. 14, The company shall be entitled to receive, in addition to all moneys properly expended by it and chargeable against any estate of which the adininistra- tion shall be committed to the company, whether as George V. Company to he paid a commission ol Moneys received, executor, administrator, trustee, receiver, committee, or. guardian, a commission at a rate to be fixed from time to time by the board of directors of the company, but not to exceed in any case two pounds ten shillings for every hundred pounds of the corpus or capital value of any such estate, and five pounds for every one hundred pounds of the annual income of any such estate received by the company, and of all moncys, whether capital or income, received by the company as an attorney acting under power of attor ney, and such commission 'shall be payable out of the moneys in possession of the company representing the estate upon which the same shall be chargeable, and shall be accepted by the company in full satisfaction of any claim to remuneration for acting as such executor, administrator, receiver, trustee, com- mittee, guardian, or attorney, and uo other charges beyond such commission and moneys properly expended by the company shall be made or allowed: Provided that if in any estate ary judge in equity, or judge in probate, shall be of opinion that the rate of commission charged is excessive such judge may review any such commission: Provided 'also. that the commission charged by the company against any estate shall not execed the amount of the published scale of charges of the company at the time when the administration of such estate was committed to the company, nor shall this enactment prevent the payment of any commission directed by a testator in his will cither in addition to or in lieu of the commission hereinbefore authorised. , 15. George V. Company may be re- moved from office by court. Order for account on application of trustee cestui que, trust, &c. Judge may order audit in any estate committed to company. The Union Trustee Company of Australia, Limited, Act. 15. Whenever the company shall have been appointed executor, administrator, trustee, receiver, committee, guardian, or attorney, it shall be subject in all respects to the same control, and to removal or restraint from acting and generally to the jurisdiction of the courts, in the same manuer as any other executor, administrator, trustec, receiver, committee, guardian or attorney. 16. It shall be lawful for any trustee cestui que, trust, executor, legatee, administrator, next of kin, or creditor entitled to or interested in any estate which shall for the time being be under the management or control of the company, after demand in writing made to the managing director, manager, or acting manager of the company, for a sufficient account of the property and assets of which such estate shall consist, and of the disposal and expenditure thereof or thereout ; and upon non-compliance with such demand within a reasonable time, to apply to any judge in equity or judge in probate of the Supreme Court ina summary manner upon motion after notice to the company for an account, and if the said judge shall be of opinion that no sufficient account has been rendered by the company, the said judge shall order such account to be rendered by the company as to the said judge shall seem just, or if the said judge shall think that under the circumstances the company was not bound to furnish any account or that a sufficient account had been furnished, it shall be lawful for the said judge to dismiss the application, and the said judge shall have power in all cases to make such orders as to costs cither against the company or against the applicant, or as to payment of costs out of the estate as to the said judge shall seem right. 17. It shall be lawful for the said judge in equity or judge in probate, upon the making of any application under the last preceding clause, to order, in addition to or in substitution for any account to be rendered by the company, that a person to be named in such order shall examine the books and accounts of the company in reference to the estate as to which the order is made, and in that case the directors and officers of the company shall deliver to the person named in such order a list of all the books kept by the company, and shall produce to such The Union Trustee Company of Austraiia, Limited, Act. such person at the office of the company at all reasonable times when required all books and accounts, vouchers, papers, and other documents of the company relating to such estate, and shall afford him all necessary informa- tion and all other necessary facilities for en nabling him to make the said examination, and the said judge shall have the same power over the costs of such examination as is given by the last preceding seetion over the costs of an application under that section. 18. So long as any estate, in respect of which the company is executor, administrator, trustee, committee or guardian, shall remain in whole or in part unad- ministered, it shall not be lawful to proceed to wind up the company voluntarily unless with the sanction of the said judge, and it shall be lawful for any person inter- ested in such estate, or who may have any claim in respect thereof, to apply to the said judge in a summary way by motion to restrain any director or any shareholder from disposing of any shares which such director or sharcholder may hold in the company, or to restrain the winding up voluntarily of the company, and the said judge shall have power to make such order upon such application as the circumstances of the case shall appear to the said judge to require. 19. If it be provedat any time to the satisfaction of any judge i in equity or judge in probate that three-fourths | or more of the amount of capital authorised by this Act to be called up has been lost by the company, it shall be lawful for such judge, upon the application of any member, creditor, or cestui que trust of the company, to make an order for the winding up of the company. 20. The following provisions with respect to the liability of directors and shareholders in the company shall be and remain in force notwithstanding any altera- tion which may be made in its articles of association :— No member shall hold more than one thousand shares in his own right: Provided that if the capital of the company shall be increased by the issue of new shares the number of shares whieh may be held by cach member shall be proportionately increased. No more than one pound ten shillings per share shall be called up, except in the event of and for the purpose of George V. Voluntary wiiding up of > company or disposal of shares may he restrained hy judge. Judge may order wind- ing up of company. Provision as to liability of drectors and sharcholders, 24 The Union Trustee Company of Australia, Limited, Act. George V, of the winding up of the company, and every member shall in such event be liable to con- tribute the unpaid balance of every share held by him. In the event of the company being wound up, every person who has been a director of the company at any time within the period of two vears pre- ceding the commencement of the winding up shall be liable for the balance unpaid on every share which he may have transferred' during such two years, in addition to his lability upon any such shares held by him at the commence- ment of the winding up in the event of the holder or holders of such shares being unable to pay the said balance per share in full. The capital of the company shall be and remain divided into shares of two pounds ten shillings each, and the number of shares in the company shall not be at any time reduced to less than one hundred thousand. Moneys 21. All moneys which form part of any estate of remaining, Which at any time the company shall be executor, five years to administrator, or trustee, and which moneys shall we paid into remain unclaimed by the person entitled to the same for a period of five years after the time when the same shall have become payable to such person, except where payment has been or shall be restrained by the injunc- tion of some court of competent jurisdiction, shall, together with interest at current rates on fixed deposits in banks, be paid by the company into the State Treasury to be placed to the credit of a fund to be called the testamentary and trust fund, distinguishing the particular estates in respect of which such moneys shal have been paid, and the Treasurer shall from time to time invest such moneys in the purchase of Government debentures or stock to be placed to the credit of the sai testamentary and trust fund, distinguishing in the ledger the particular estate in respect of which such moneys shall have been invested; and the interes payable on such debentures or stock shall be placed to the credit of the said fund, and the said Treasurer's said 'account in the ledger shall be an official and not a nominal The Union Trustee Company of Australia, Limited, Act. nominal account, and in all transfers of the said deben- tures and stock by the said Treasurer he shall be so styled without any name, addition, or description, and he shall not sign any such transfers or pay over any of the moneys standing to the eredit of the said fund unless an order of any judge in equity or judge in' probate directing such transfer and specifying the amount of moneys, debentures, or stock, and the name, description, and addition of the person to whom the proceeds of such sale are to be paid shall be left at the office of the said Treasurer, norsuntil the purchase money of the deben- tures or stock to be sold has been received in the 'Treasury ; and the company shall at the end of every six months deliver to the said Treasurer a statement of all such unclaimed moneys which during the preceding six months shall have been in its hands, and distinguishing the several estates in respect of which the same have heen received, and setting out the dates and amounts of the several payments of the same under this section ; 'and if the said moneys or any part thereof have not been paid into the Treasury with a statement of the reason for the delay of such payments, and if default is made in compliance with the foregoing provisions of this section, the company shall be liable to a penalty not exceeding five pounds for every day while such default continues, and every director and managing director, manager, or acting manager of the company who knowingly and wilfully authorises or permits such default shall incur the like penalty. 22. It shall be lawful for any person who shall be entitled to any stock debentures or moneys which shall at any time form part of the said testamentary and trust fund to apply to any judge in equity or judge in probate, upon petition in a summary way, for such order as is in the last-preceding section referred to, and the said judge shall deal with such application as nearly as may be in the same manner as in the case of applications to the said court under the Trustee Act of 1898; and in all cases in which the Treasurer may see fit to appear upon such petition, he shall be entitled to such costs against the applicant or out of the fund as the said judge may direct. 23. George V. Persons antitled to noneys in sestamentary and trust funds may apply to judge. 26 The Union Trustee Company of Australia, Limited, Act. GeorgeV. 23. It shall be lawful for the Treasurer after demand Order for in writing addressed to the managing director, manager, application of OF acting manager of the company for a sufficient Treasurer. account of the property and assets of which any or every estate included in or which ought to be or to have been included in the hereinbefore mentioned statement of unclaimed moneys shall consist, and of the disposal and expenditure thereof, of or thereout, to apply to the said judge in a summary way, upon motion after notice to the company, for an account, and if the said judge shall be of opinion that no sufficient aceount has been rendered by the company, the said judge shall order such account to be rendered by the company as to the said judge shall seem just, or if the said judge shall think that under the circumstances the company was not bound to furnish any account, or that any account furnished by the company was sufficient, it shall be lawful for the said judge to dismiss the application, and the said judge shall have power in all cases to make such order as to costs either against the company or as to payment of costs out of the estate as to the said judge shall seem right. Returnstobe 24, The managing director, manager, or acting made by manager of the company shall during the months of company to S .* : : be filedin March and September in every year during which the registered ~~ eompany carries on business, make before some justice companyand of the peace a declaration in the form contained in the its branches. Schedule hereto, or as near thereto as circumstances will admit, of the receipts, expenditure, and investments of and in all estates and property held by the company in trust up to the twenty-eighth day of February or thirty-first day of August then last past; such declara- tion shall within seven days after the making thereof be filed in the office of the Master in Equity, and a copy of such declaration shall be put up ina conspicuous place in the registered office of the company and in every branch office or place where the business of the company is carried on, and shall be given to any member or creditor of the company, or any cestui que trust who applies for the same; and if default is made in compliance with the provisions of this section the company shall be liable to a penalty not exceeding five pounds for every day whilst such default continues, and every The Union Trustee Company of Australia, Limited, Act. 27 every managing director, manager, or acting manager of G@zorge V. the company who knowingly and wilfully authorises or ; permits such default shall incur the like penalty. 25. Every order made by any judge in equity, or Appeal from judge in probate, or any other judge under this Act, J's shall be subject to appeal in the same manner and under the same conditions as other orders of the said judges. 26. Nothing in this Act contained shall be deemed Act not to to give to the company any right to oppose the granting Predude of similar powers to those conferred upon the company panys from by this Act to any other company or to corporations {Pry is fr generally, or to claim or to seek compensation in consequence of such powers being conferred upon any feo be this other company, or upon corporations generally, or in the Act event of provision heing made by Parliament for the management of trust estates by a public trustee or depart- ment or officer of the Government, or in the event of the repeal of this Act. 2'7. Where by any settlement, will, codicil, or other settlors or testamentary writing, a settlor or testator shall direct appoint thei that any practising solicitor or solicitors shall conduct ownsolicitors. the legal business of his or her estate, such solicitor or solicitors shall be entitled to act therein accordingly, but in such case the company shall not be Hable for the negligence, misfeasance, nonfeasance, or misconduct of such solicitor or solicitors, and such solicitor or solicitors may be removed by the order of any judge in equity or judge in probate upon the application of the company or of any person interested in the said estate upon cause shown, and then and in such case the said judge may appoint the solicitor or solicitors of the company to conduct such legal business. 28. Except so far as is herein expressly provided, the Treorporation company shall have and be subject to the same restric- Gf udinany ~~ of company tions, abilities, penalties, privileges, and powers as it except s0 tar has and is subject to under its present incorporation, ahered to and this Act shall not otherwise effect the incorporation remain. of the company. 29. Any penalty imposed by this Act may be Recovery of recovered in a summary way before two or more justices penalties, of the peace. 30. George V. Short title of Act, The Union Trustee Company of Australia, Limited, Act. . 30. This Act shall be called and may be cited as. "The Union Trustee Company of Australia, Limited, Act." SCHEDULE, The Union Trustee Company of Australia, Limited. I (managing director, as the case may be) do hereby solemnly and sincerely declare :— That the liability of the members is limited. That the capital of the company is pounds, divided into. shares of pounds each. That the number of shares is That calls to the amount of have been made under which. tne sum of £ has been received. That the assets of the company other than assets held on trust on the day of were :— Government securities £ Bills of exchange and promissory notes £ Cash at the banks... £ Other securities £ Total we £ That the value of the real and personal property come to the hands of the company as trustees, executors, administrators, receivers, and agents since its registration in the State of New South Wales up to and inclusive of the day of , one thousand nine- hundred and » was as follows :— ( } Estimat