Division 4Division 4 Miscellaneous powers
(1) Where any chattels are vested in a trustee for persons in undivided shares, any person interested in a moiety or upwards may apply to the Court for an order for division of the chattels or any of them, according to a valuation or otherwise.(2) The Court may make such order and give any consequential directions as it thinks fit.
88 Order in absence of a trustee
Where in any proceedings the Court is satisfied that diligent search has been made for any person who, in the character of trustee, is made a defendant thereto to serve the person with a process of the Court and that the person cannot be found, the Court may hear and determine the proceedings and make an order therein against that person in his or her character of a trustee as if he or she had been duly served or had entered an appearance in the proceedings, and had also appeared by his or her Australian legal practitioner at the hearing, but without prejudice to any interest he or she may have in the matters in question in the proceedings in any other character.
89 Proceedings under Mental Health Act 1958
Where an application is made under this Part concerning a person of unsound mind, the Court may direct an application to be made to the Court under the Mental Health Act 1958 for the purpose of having such person declared an insane or an incapable person, and may postpone making any order until that application has been heard.
90 Court may take into account investment strategy in action for breach of trust
In proceedings against a trustee for a breach of trust in respect of a duty under Division 2 of Part 2 relating to the trustee’s power of investment, the Court may, when considering the question of the trustee’s liability, take into account the following:(a) the nature and purpose of the trust,(b) whether the trustee had regard to the matters set out in section 14C so far as is appropriate to the circumstances of the trust,(c) whether the trust investments have been made pursuant to an investment strategy formulated in accordance with the duty of a trustee under Division 2 of Part 2,(d) the extent the trustee acted on the independent and impartial advice of a person competent (or apparently competent) to give the advice.
90A 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.