Australia
Western Trustees of Western Australia Limited (Transfer of Business) Act 2003
Western Australia
Trustees of Western Australia Limited (Transfer of Business) Act 2003
CONTENTS
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Act binds Crown 4
5. Undertaking vested in Plan B Trustees 4
6. Supplementary provisions as to vesting of undertaking 6
7. Rights in respect of land that is an excluded asset 8
8. Proceedings 9
9. Evidence 9
10. Transfer of employees 9
11. Prescribed securities 10
12. Officers to register documents 11
13. Protection of persons dealing with Plan B Trustees or TrustWest
11
14. Vesting of TrustWest common trust funds in Plan B Trustees 12
15. Amendment of Trustee Companies Act 1987 13
Western Australia
Trustees of Western Australia Limited (Transfer of Business) Act 2003
No. 18 of 2003
An Act to provide for the transfer of the business conducted by and the
undertaking of Trustees of Western Australia Limited to Plan B Trustees
Limited, to amend the Trustee Companies Act 1987, and for related purposes.
[Assented to 17 April 2003]
Reasons for enactment
1. It is proposed to transfer the business and undertaking of
Trustees of Western Australia Limited to Plan B Trustees Limited, both
corporations being subsidiaries of Plan B Financial Services Limited.
2. In the interest of business efficiency it is expedient that the
business conducted by and undertaking of Trustees of Western Australia
Limited should be transferred to Plan B Trustees Limited, and that all
property held by Trustees of Western Australia Limited as trustee
should be vested in Plan B Trustees Limited.
3. It is expedient to enact legislation to effect the transfer and
vesting and to make provision for other matters related to the transfer
and vesting.
The Parliament of Western Australia enacts as follows:
1. Short title
This Act may be cited as the Trustees of Western
Australia Limited (Transfer of Business) Act 2003.
2. Commencement
This Act comes into operation on a day fixed by
proclamation.
3. Interpretation
In this Act, unless the contrary intention appears -
"appointment" means the appointment of TrustWest as executor,
manager, trustee, agent or attorney made -
(a) by will, codicil, deed, agreement, declaration,
nomination or other instrument;
(b) by the Supreme Court; or
(c) under any written law,
and includes the appointment of TrustWest as one of 2 or
more executors, managers, trustees, agents or attorneys;
"appointed day" means the day on which section 5 comes into
operation;
"corporation" means a body whether corporate or unincorporate;
"excluded assets" means -
(a) documents required by law to be kept by TrustWest; and
(b) land held by or vested in TrustWest as beneficial owner
and not as executor, trustee, nominee or in any other
capacity on behalf of another person, and buildings or
structures on that land;
"instrument" means an instrument (other than this Act) that
creates, evidences, modifies or extinguishes rights or
liabilities, or would do so if it or a copy of it were lodged,
filed or registered under any written or other law, and includes
any judgment, order or process of a court and any will, codicil,
declaration of trust, deed of trust or power of attorney;
"land" includes any estate or interest in land, or an interest in
respect of land;
"legal proceedings" includes an arbitration;
"liabilities" means all liabilities, duties and obligations,
whether actual, contingent or prospective;
"Plan B Trustees" means Plan B Trustees Limited;
"prescribed securities" means securities within the meaning of the
Corporations Act 2001 of the Commonwealth;
"property" means property of every kind whether tangible or
intangible, real or personal, corporeal or incorporeal and,
without limiting the generality of that meaning, includes choses
in action, goodwill, rights, interests and claims of every kind
in or to property, whether arising from, accruing under, created
or evidenced by, or the subject of, an instrument or otherwise
and whether liquidated or unliquidated, actual, contingent or
prospective;
"rights" means all rights, powers, privileges and immunities,
whether actual, contingent or prospective;
"security" means a mortgage or charge (whether legal or
equitable), debenture, bill of exchange, promissory note,
guarantee, indemnity, lien, pledge or other security for the
payment of money or for the discharge of any other liability, and
includes an agreement or undertaking to give or execute any of
those things whether upon demand or otherwise;
"transferred employee" means an employee of TrustWest who becomes
an employee of Plan B Trustees under this Act;
"TrustWest" means Trustees of Western Australia Limited;
"undertaking", in relation to TrustWest, means -
(a) all property of TrustWest (apart from excluded assets);
(b) all rights and liabilities of TrustWest (apart from
rights and liabilities relating to excluded assets); and
(c) all appointments.
4. Act binds Crown
This Act binds the Crown.
5. Undertaking vested in Plan B Trustees
(1) On the appointed day the undertaking of TrustWest is
vested in Plan B Trustees.
(2) On and after the appointed day a reference to TrustWest
in -
(a) any instrument, caveat, transmission or survivorship
application; or
(b) any other document,
made, passed or executed before that day is (except to
the extent, if any, that it relates to an excluded asset, and unless
the context otherwise requires) to be read and construed as a
reference to Plan B Trustees.
(3) On and after the appointed day a reference to the holder
for the time being of a particular office (other than the office of a
director, secretary or auditor) within TrustWest in any instrument
made or executed before that day is (unless the context otherwise
requires) to be read and construed as a reference to -
(a) the person for the time being holding office as Chief
Executive Officer of Plan B Trustees; or
(b) such other officer of Plan B Trustees as is designated
from time to time by the Chief Executive Officer or by any
other officer acting under delegation from the Chief Executive
Officer.
(4) Without prejudice to the generality of subsection (1) but
despite anything to the contrary in any written or other law, if any
registered estate or interest in land (being land under the Transfer
of Land Act 1893) is under this section vested in Plan B Trustees,
whether as beneficial owner, executor, manager, trustee, agent or
otherwise, Plan B Trustees is to be taken to be the registered
proprietor of any such estate or interest of which TrustWest is the
registered proprietor (other than the excluded assets) and the estate
or interest may be dealt with accordingly.
(5) The Registrar of Titles must, upon the application of
Plan B Trustees and the payment of the appropriate fee under the
Transfer of Land Act 1893, register Plan B Trustees as the proprietor
of the estate or interest in land in the State (being land under the
Transfer of Land Act 1893) that has vested in the applicant under
this section.
(6) An instrument relating to land (being land under the
Transfer of Land Act 1893) that has vested in Plan B Trustees under
this section must, if the instrument is executed by Plan B Trustees
and is otherwise in registrable form, be registered by the Registrar
of Titles upon the payment of the appropriate fee under the Transfer
of Land Act 1893, notwithstanding that Plan B Trustees has not been
registered as the proprietor of the land under subsection (5).
(7) If for any reason a liability to TrustWest immediately
before the appointed day remains a liability to TrustWest on or after
that day, TrustWest has and may enforce the same rights in respect of
that liability (including rights under any security relating to the
liability) as if this Act had not been enacted.
6. Supplementary provisions as to vesting of undertaking
(1) Without prejudice to the generality of any other
provision of this Act, subsections (2) to (12) have effect on and
after the appointed day.
(2) An instruction, appointment, order, direction, power of
attorney, mandate or authority given to TrustWest (other than in
relation to an excluded asset) and in force immediately before the
appointed day is to be taken to have been given to Plan B Trustees.
(3) An instrument given or addressed to TrustWest (other than
in relation to an excluded asset or an asset acquired or liability
incurred on or after the appointed day), on or after the appointed
day is to be taken to have been given or addressed to Plan B
Trustees.
(4) A security held by TrustWest as security for a debt or
other liability owed to TrustWest incurred before the appointed day
is available to Plan B Trustees as security for the discharge of that
debt or liability and, if the security extends to future or
prospective debts or liabilities, is available as security for the
discharge of debts owed to or liabilities to Plan B Trustees and
incurred on or after the appointed day.
(5) In relation to a security to which TrustWest is entitled
or subject immediately before the appointed day, Plan B Trustees is
entitled to all the rights and priorities (however arising) and is
subject to all liabilities to which TrustWest would have been
entitled or subject if this Act had not been enacted.
(6) All the rights and liabilities of TrustWest as bailee of
documents or chattels to which TrustWest is entitled or subject
immediately before the appointed day are transferred to and assumed
by Plan B Trustees.
(7) A negotiable instrument or order for payment of money
which, immediately before the appointed day, is drawn on or given to
or accepted or endorsed by TrustWest, or payable at a place of
business of TrustWest, is to be taken as having the same effect on or
after the appointed day as if it had been drawn on or given to or
accepted or endorsed by Plan B Trustees instead of TrustWest, or was
payable at the place of business of Plan B Trustees.
The (8) relationship between TrustWest and a client,
beneficiary or depositor of TrustWest immediately before the
appointed day becomes a relationship of the same nature between
Plan B Trustees and the client, beneficiary or depositor, and the
same rights and liabilities, including rights of set-off, exist
between Plan B Trustees and the client, beneficiary or depositor as
existed immediately before the appointed day between TrustWest and
the client, beneficiary or depositor.
(9) All contracts, declarations of trusts, deeds of trust,
appointments, agreements, powers of attorney, conveyances, deeds,
leases, licences, instruments, undertakings and notices (whether or
not in writing) entered into by, made with, given to or by, or
addressed to TrustWest (whether alone or with any other person)
before the appointed day and in effect immediately before the
appointed day are, to the extent that they were previously binding on
and enforceable by, against or in favour of TrustWest, binding on and
enforceable by, against or in favour of Plan B Trustees as fully and
effectually in every respect (except to the extent that they relate
to an excluded asset) as if, instead of TrustWest, Plan B Trustees
had been the person by whom they were entered into, with whom they
were made, to or by whom they were given or to whom they were
addressed, as the case may be.
(10) No legal proceedings commenced before the appointed day
by, against or in favour of TrustWest are ended or otherwise
prejudiced by reason of this Act.
(11) Nothing effected by this Act -
(a) is to be regarded as placing TrustWest or Plan B Trustees
in breach of trust, contract or confidence, or as otherwise
rendering either of them liable for a civil wrong;
(b) is to be regarded as placing either of them in breach of
any written or other law, or of any contractual provision,
prohibiting, restricting or regulating the assignment or
transfer of any property or the disclosure of any information;
or
(c) releases any surety wholly or in part from all or any of
the surety's obligations.
(12) Nothing done or suffered by TrustWest or Plan B Trustees
under this Act -
(a) is to be regarded as a breach of trust, contract or
confidence or any other civil wrong;
(b) is to be regarded as a breach of any written or other
law, or of any contractual provision, prohibiting, restricting
or regulating the assignment or transfer of any property or the
disclosure of any information; or
(c) releases any surety wholly or in part from all or any of
the surety's obligations,
if it would not have been so regarded or had that effect
had it been done or suffered by TrustWest and this Act had not been
enacted.
7. Rights in respect of land that is an excluded asset
(1) If immediately before the appointed day, under a lease,
licence or other contract or agreement, TrustWest has rights in
respect of the occupation or use of land, being an excluded asset,
those rights may, notwithstanding that there has been no assignment,
transfer, underletting or other disposition by TrustWest, be
exercised on or after the appointed day by Plan B Trustees.
(2) For the purposes of a lease, licence or other contract or
agreement relating to the occupation or use of land, TrustWest does
not part with possession of land by permitting Plan B Trustees to
exercise rights under subsection (1) in respect of the land.
8. Proceedings
(1) Legal proceedings to which TrustWest was a party
immediately before the appointed day may be continued by or against
Plan B Trustees.
(2) A judgment, order or award obtained by or against
TrustWest in legal proceedings commenced before the appointed day may
be enforced by or against Plan B Trustees.
9. Evidence
Documentary or other evidence that would have been
admissible for or against the interests of TrustWest if this Act had
not been enacted is admissible for or against the interests of Plan B
Trustees.
10. Transfer of employees
Despite any other provision of this Act -
(a) on the appointed day each employee of TrustWest ceases to
be an employee of TrustWest and becomes an employee of Plan B
Trustees but, for the purposes of every written and other law,
award, determination, contract and agreement relating to the
employment of each such employee, the employee's contract of
employment is to be taken to be unbroken and the period of the
employee's service with TrustWest is to be taken to have been a
period of service with Plan B Trustees;
(b) the terms and conditions of the employment of each
transferred employee with Plan B Trustees are -
(i) on and after the appointed day (until varied) identical
with the terms and conditions of the employee's
employment with TrustWest immediately before the
appointed day, and are capable of variation in the same
manner as they were immediately before that day; and
(ii) subject to any written or other law, award or
determination relating to those terms and conditions,
also capable of variation in the same manner as the
general terms and conditions of employment of other
persons employed by Plan B Trustees are capable of
variation;
(c) a transferred employee is not entitled to receive any
payment or other benefit by reason only of ceasing to be an
employee of TrustWest because of this Act;
(d) nothing in this Act, other than paragraph (c), affects
rights or liabilities under any provident, benefit,
superannuation or retirement fund or scheme relating to
employees of TrustWest; and
(e) a director, secretary or auditor of TrustWest immediately
before the appointed day does not become a director, secretary
or auditor of Plan B Trustees because of this Act.
11. Prescribed securities
(1) If prescribed securities are vested in Plan B Trustees
because of this Act, a certificate signed by the Chief Executive
Officer of Plan B Trustees, or by an officer acting under delegation
from the Chief Executive Officer, stating that the prescribed
securities have so vested is, despite any written or othe...