Chapter 2 Constitution of NSW Trustee

Part 2.1 Constitution and management of NSW Trustee

5   Constitution of NSW Trustee and Guardian

There is constituted by this Act a corporation with the corporate name of the NSW Trustee and Guardian.

Note. In this Act, the NSW Trustee and Guardian is referred to as the NSW Trustee (see section 3 (1)).

6   Status of NSW Trustee

The NSW Trustee is a NSW Government agency.

7   Chief Executive Officer

(1)  The Governor may appoint a Chief Executive Officer of the NSW Trustee.

(2)  The Chief Executive Officer may be appointed for a term not exceeding 5 years but is eligible for re-appointment.

(3)  The employment of the Chief Executive Officer is subject to Part 3.1 of the Public Sector Employment and Management Act 2002, but is not subject to Chapter 2 of that Act.

(4)  The Governor may remove the Chief Executive Officer from office only for misbehaviour, incapacity or incompetence, despite anything to the contrary in section 77 of the Public Sector Employment and Management Act 2002.

(5)  The Chief Executive Officer is responsible for the day-to-day management of the affairs of the NSW Trustee.

(6)  Any act, matter or thing done in the name of, or on behalf of, the NSW Trustee by the Chief Executive Officer is taken to have been done by the NSW Trustee.

8   Acting Chief Executive Officer

(1)  The Minister may, from time to time, appoint a person to act in the office of the Chief Executive Officer during the illness or absence of the Chief Executive Officer (or during a vacancy in the office of Chief Executive Officer) and a person, while so acting, has all the functions of the Chief Executive Officer.

(2)  The Minister may, at any time, remove a person from the office of acting Chief Executive Officer.

(3)  The acting Chief Executive Officer is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine.

9   Delegation

(1)  The NSW Trustee may delegate to an authorised person any of its functions, other than this power of delegation.

(2)  The Chief Executive Officer may delegate to an authorised person any of the Chief Executive Officer’s functions, other than this power of delegation.

(3)  A delegate may sub-delegate to an authorised person any function delegated by the NSW Trustee or Chief Executive Officer if the delegate is authorised in writing to do so by the NSW Trustee or Chief Executive Officer.

(4)  In this section, authorised person means:

(a)  a member of staff of the Division of the Government Service comprising the group of staff who are employed under Chapter 1A of the Public Sector Employment and Management Act 2002 to enable the NSW Trustee to exercise its functions, or

(b)  a person, or committee of persons, of a class approved by the Minister or prescribed by the regulations.

Part 2.2 General functions

10   Functions generally

(1)  The NSW Trustee has such functions as are conferred or imposed on it by or under this or any other Act.

(2)  The NSW Trustee may do all such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of its functions.

(3)  However, the NSW Trustee cannot employ any staff.

Note. Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service to enable the NSW Trustee to exercise its functions.

11   General trustee and other functions

(cf PT Act, ss 12 and 13)

(1)  The NSW Trustee may be appointed to and act in any of the following capacities:

(a)  trustee,

(b)  executor or administrator,

(c)  collector of estates under an order to collect,

(d)  agent or attorney,

(e)  guardian or receiver of the estate of a minor,

(f)  receiver of any other property.

(2)  The NSW Trustee may be appointed to and act in the capacity of a financial manager of the estate of a managed person.

(3)  The NSW Trustee may prepare wills and carry out professional services in connection with wills, probate and administration.

(4)  The NSW Trustee, if appointed to act in a trust or protective capacity:

(a)  has the same liabilities, and

(b)  is entitled to the same rights and immunities, and

(c)  is subject to the same control and orders of any court,

      as a private person acting in the same capacity.

12   Appointment as trustee

(1)  The NSW Trustee may be appointed to be a trustee under a trust instrument as an original, new or additional trustee.

(2)  The NSW Trustee may be appointed as sole trustee, even though the trustees originally appointed were 2 or more, and despite the provisions of the trust instrument as to the number of trustees.

(3)  However, the NSW Trustee must not be appointed as trustee if the trust instrument contains a direction to the contrary or prohibits the appointment.

13   Refusal of appointment as trustee or manager

(cf PT Act, s 12 (3) and (4))

(1)  The NSW Trustee may refuse to act in a trust capacity or may accept subject to conditions. However, the NSW Trustee must not refuse merely on the ground of the small value of the trust property or estate concerned.

(2)  The NSW Trustee must not accept:

(a)  any trust under a deed of arrangement for the benefit of creditors, or

(b)  any trust exclusively for religious purposes, or

(c)  any trust or trust capacity, if the instrument that creates the trust or duty concerned prohibits the appointment of the NSW Trustee.

14   Court may waive consent requirement for appointment

(cf PT Act, s 17)

(1)  This section applies if a trust instrument requires the consent of a person to the appointment of a trustee.

(2)  The Supreme Court may direct that consent is not required to the appointment of the NSW Trustee if:

(a)  the person refuses or fails to consent, or

(b)  the person is, for any reason, not capable of consenting.

15   Functions exercised jointly

(cf PT Act, s 12 (1A))

(1)  This section applies if the NSW Trustee jointly accepts a trust or is appointed to act jointly in a trust capacity with another person.

(2)  The NSW Trustee and the other person jointly have and may exercise the same functions as the NSW Trustee would have and may exercise if the NSW Trustee were acting alone.

(3)  Any money or other property under the control of the NSW Trustee and the other person must be dealt with in the same manner as money or other property under the sole control of the NSW Trustee.

(4)  If money or other property is payable, transferable or deliverable to the NSW Trustee and the other person jointly:

(a)  a written receipt given by the NSW Trustee alone is a sufficient discharge for that payment, transfer or delivery, and

(b)  any person required to make the payment, transfer or delivery is not required to make it to the other person and is not liable for any subsequent loss or misapplication of the money or property.

16   Powers of NSW Trustee relating to property and other matters

(cf PT Act, s 35, PE Act, s 24)

(1)  The NSW Trustee may exercise the following functions when acting in a trust capacity or protective capacity:

(a)  receive money, rent, income and profit of real and personal property,

(b)  grant leases of property for a term not exceeding 10 years and give to a lessee an option of renewal if the aggregate duration of the lease and any such renewal does not exceed 10 years,

(c)  enter into a share-farming agreement for a period not exceeding 3 years,

(d)  surrender a lease and accept a new lease,

(e)  accept a surrender of a lease and grant a new lease,

(f)  execute a power of leasing vested in a person having a limited estate only in the property over which the power extends,

(g)  buy, sell, realise and mortgage (with or without a power of sale) real and personal property,

Note. Mortgage includes charge (see section 3 (1)).

(h)  pay interest secured by a mortgage out of capital, if income is insufficient,

(i)  postpone the sale, calling in and conversion of any property that the NSW Trustee has a duty to sell, other than property that is of a wasting, speculative or reversionary nature,

(j)  settle, adjust and compromise a demand made by or against the estate,

(k)  exchange or join in a partition of property and give or receive money for equality of exchange or partition,

(l)  carry on a business, so far as may appear desirable for the purpose of more advantageously disposing of, or winding up, the business or preserving the business of a managed person until the managed person is able to carry it on,

(m)  agree to an alteration of the conditions of a partnership into which a managed person has entered, for the purpose of more advantageously disposing of an interest in the partnership or terminating liability,

(n)  carry out a contract entered into before the appointment of the NSW Trustee or enter into an agreement terminating the liability,

(o)  surrender, assign or otherwise dispose of, with or without consideration, onerous property,

(p)  exercise a power, or give a consent required for the exercise of a power, where the power is vested in a managed person for the benefit of the person or the power of consent is in the nature of a beneficial interest in the person,

(q)  sequestrate the estate under the bankruptcy laws,

(r)  take proceedings to cause a company to be placed in liquidation and vote or act by proxy at meetings of creditors or shareholders, whether the company is in liquidation or not,

(s)  bring and defend actions, suits and other proceedings,

(t)  without limiting paragraph (s), take criminal proceedings touching or concerning property,

(u)  pay rates, taxes, assessments, insurance premiums, debts, obligations, costs and expenses and other outgoings,

(v)  without limiting paragraph (u), pay the reasonable costs of the erection of a memorial or a tombstone over the grave of a deceased person or, if a deceased person is cremated, the reasonable costs of a memorial or any arrangements for the preservation of the ashes of the deceased person,

(w)  repair and insure against fire or accident any property,

(x)  bring land under the Real Property Act 1900,

(y)  do or omit all things, and execute all documents, necessary to carry into effect the functions of the NSW Trustee.

(2)  The functions conferred by this section are in addition to, and do not restrict, any other functions of the NSW Trustee.

17   Power to use funds for benefit of minors and other incapable persons

(cf PT Act, s 34)

(1)  This section applies if:

(a)  a minor is entitled to money held by the NSW Trustee or is entitled to any such money contingently on attaining an age specified in an instrument creating the entitlement, or

(b)  a person (an incapable person) is entitled to money held by the NSW Trustee and is, in its opinion, not capable of giving a good discharge.

(2)  The NSW Trustee may pay, or pay to any person it thinks fit, amounts of the money to be used for the past or future maintenance, education, advancement or benefit of the minor or incapable person (including the reimbursement of expenses already paid in that connection).

(3)  The Supreme Court may, on application by the NSW Trustee, give or vary or revoke directions as to the payment or application of money held by the NSW Trustee to or in respect of a minor or incapable person or determine any related manner.

(4)  Any such direction or determination exonerates the NSW Trustee from any claim or demand from any person at all.

(5)  The NSW Trustee is not required to see to the application of money paid under this section.

18   Power to pay small amounts of money due to deceased persons

(cf PT Act, s 34C)

(1)  The NSW Trustee may pay an amount payable by the NSW Trustee to a person who has died to another person without requiring administration to be taken out in the estate of the deceased person if:

(a)  the amount does not exceed the amount prescribed by the regulations for the purposes of this section, and

(b)  the NSW Trustee considers that the other person is entitled to the amount.

(2)  A person to whom an amount is paid under this section must apply the money as required by law in the administration of the estate.

(3)  A payment made by the NSW Trustee under this section is valid against all persons and the NSW Trustee is discharged from all liability in respect of all money so paid by the NSW Trustee.

(4)  This section does not affect any right of a person to claim or recover money paid under this section from a person other than the NSW Trustee.

19   No bond by NSW Trustee

(cf PT Act, s 49)

No bond or other security is required from the NSW Trustee before being appointed, by or under this or any other Act, in any trust capacity.

20   Appointment of agents and other persons

(1)  The NSW Trustee may appoint agents and act as an agent for other persons.

(2)  The NSW Trustee may appoint a registrar or deputy registrar appointed under the Local Court Act 2007 as an agent of the NSW Trustee.

(3)  Any such registrar or deputy registrar has, and may exercise, the agency functions which he or she is appointed to exercise.

(4)  Without limiting subsection (1) or (2), the NSW Trustee may employ another person to transact any business or do any act that is required to be done by it, or to advise or assist it, when exercising its trust or protective capacities.

(5)  The NSW Trustee is not responsible for any default of any agent so employed.

21   NSW Trustee may sue itself in another capacity

(1)  The NSW Trustee, acting in one capacity, may maintain proceedings against itself acting in another capacity.

(2)  However, in any such case the NSW Trustee may apply to the Supreme Court for direction as to the manner in which the opposing interests are to be represented and must comply with the Court’s directions.