Part 55 Matters arising under the Trustee Act 1925
(cf SCR Part 70, rule 3)
(1) A statement under section 63 of the Trustee Act 1925:(a) must be divided into consecutively numbered paragraphs, and(b) must state the facts concisely, and(c) must state the question for opinion, advice or direction.(2) Despite rule 6.12 (2), the originating process in proceedings under section 63 of the Trustee Act 1925 need not state the question for opinion, advice or direction.
(cf SCR Part 70, rule 4)
An opinion, advice or direction under section 63 of the Trustee Act 1925 must be given by order.
55.3 Application by beneficiary
(cf SCR Part 70, rule 5)
The time for an application under section 63 (10) of the Trustee Act 1925 is, subject to that subsection, 28 days after the date of receipt by the applicant of notice under section 63 (8) of that Act or the date of entry of the order containing the opinion, advice or direction, whichever date is the later.
(cf SCR Part 70, rule 6)
An appeal lies to the Court of Appeal from an opinion, advice, direction or order given or made by the Supreme Court under section 63 of the Trustee Act 1925, including an opinion, advice, direction or order given or made by an associate Judge.Note. Pursuant to section 104 of the Supreme Court Act 1970, this rule overrides the prohibition on an appeal from an associate Judge that would otherwise exist under that section.
(cf SCR Part 70, rule 7)
This Division applies to an application for the appointment of a new trustee under Part 3 of the Trustee Act 1925 (a Part 3 application).
(cf SCR Part 70, rule 8)
The evidence in support of a Part 3 application must show each of the following:(a) the nature of the trusts still subsisting,(b) the nature and value of the trust property,(c) whether any and, if so, what part of the trust property is subject to the Real Property Act 1900,(d) the person beneficially entitled,(e) the fitness of the proposed new trustee,(f) the consent of the proposed new trustee.
(cf SCR Part 70, rule 9)
(1) Only one affidavit of the fitness of a proposed new trustee may be required, unless the Supreme Court otherwise orders.(2) The affidavit must set out the following:(a) the proposed new trustee’s position in life,(b) how long the deponent has known the proposed new trustee,(c) that the proposed new trustee is, to the knowledge of the deponent, of good credit,(d) that the proposed new trustee is, to the best of the information and belief of the deponent, of good character, repute and business habits.
(cf SCR Part 70, rule 10)
This Division applies to the payment of funds into court under Part 4 of the Trustee Act 1925 and to proceedings arising out of payment into court under that Part.
55.9 Proceedings for directions as to payment into court
(cf SCR Part 70, rules 11 and 12)
(1) If a trustee proposes to pay money or securities into court, the trustee must commence proceedings in the court by filing a summons seeking to have the money or the securities paid into court.(2) The summons:(a) must be supported by an affidavit that complies with rule 55.10, and(b) if the payment is wholly or partly money, must be accompanied by a cheque payable to “The Supreme Court of New South Wales” in the amount of the money to be paid into court.(3) If the money is paid into court by a cheque, the money is to be taken to have been paid into court on the filing of the summons, without the need for any further directions.(4) Unless the Supreme Court otherwise orders, the summons must not join any person as a defendant in the proceedings.(5) Unless the Supreme Court otherwise orders, a copy of the summons must be served on each person identified in the affidavit as a person interested in or entitled to the money or securities.(6) A person paying money or securities into court may make an application, by notice of motion in the proceedings in which the money or securities were paid, for an order that the person’s costs be payable from the money or securities.
55.10 Affidavit in support of summons
(cf SCR Part 70, rule 13)
The affidavit under rule 55.9 must set out the following:(a) a short description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose,(b) the amount and description of the funds,(c) the name and address, so far as known to the deponent, of each person interested in or entitled to the funds,(d) if any person interested in or entitled to the funds is a minor:(i) the name and address, so far as known to the deponent, of a parent or guardian of the minor’s person or estate, or(ii) if the minor has no such parent or guardian or any such parent’s or guardian’s name or address is unknown to the deponent, the name and address, so far as known to the deponent, of a person with whom the minor resides or in whose care the minor is,(e) if any person interested in or entitled to the funds is a protected person:(i) the name and address, so far as known to the deponent, of the protected person’s manager, or(ii) if the protected person has no manager or any such manager’s name or address is unknown to the deponent, the name and address, so far as known to the deponent, of a person with whom the protected person resides or in whose care the protected person is,(f) the name of the person paying the funds into court and his or her address for service.
55.11 Proceedings for directions as to payment out of court
(1) Funds that have been paid into court may only be paid out of court pursuant to the directions of the Supreme Court.(2) An application for such directions is to be made by filing a notice of motion in the proceedings in which the funds were paid into court.
(cf SCR Part 70, rule 15)
A person paying funds into court must answer all such inquiries relating to the application of the funds as the Supreme Court may make or direct.
Division 4 Distribution of assets
55.14 Notice of intended distribution
(cf SCR Part 70, rule 16)
(1) A notice under section 60 (1) of the Trustee Act 1925 must be published:(a) if it relates to a deceased estate trust in respect of:(i) a deceased person who was resident in the State when he or she died, in a newspaper circulating in the district where the deceased person resided, or(ii) a deceased person who was not resident in the State when he or she died, in a Sydney daily newspaper, or(b) in any other case, in a Sydney daily newspaper.(2) This rule is subject to section 60 (8) of the Trustee Act 1925.(3) In this rule, deceased estate trust means a trust that has arisen in respect of a deceased estate for which probate or letters of administration has or have been granted, or has or have been sealed under section 107 of the Probate and Administration Act 1898, by the Supreme Court.