South Australian Legislation

The Trustee Act 1936 (SA) repealed the following enactments:

  • The Trustee Act 1907
  • The Trustee Act 1915
  • The Trustee Act 1923
  • The Trustee Act 1931
  • This enactment amended:

  • The Trustee Act 1893, which had repealed the Trustees Act 1855, except for Sections 30,31,32,33,34,38,39(2), 43,45,46,69,72,73,74,75
  • The Property Act 1860
  • The Trustee Act 1915 had added the provision empowering the court to relieve a trustee from a personal liability in the case of a breach of trust{Section 56}.

    Section 91 of the Trustee Act 1936 (SA) provides that a trustee has the right to seek advice and directions from the Court pursuant Sections 69 and 70 of the Administration and Probate Act 1919 (SA).

    Other relevant Sections include:

    Section 14 – Power of appointing new trustees

    Section 15 – Retirement of trustees

    Section 17 – Trustee’s power of delegation

    Section 36 – Power of the Court to Appoint New Trustees

    Section 56 – Power of Supreme Court in cases of breach of trust

    Section 84B – Records to be kept by trustee

    Section 90 – Parties entitled may apply to Court by summons

     

    The current version of the Trustee Act 1936 (SA) can be found here.

    A copy of the original version as enacted can be found here.

    Section 14 provided a statutory power of appointing new trustees, including the case where a trustee is dead or remains out of the State for more than twelve months.

    Section 14(c) as originally enacted provided:

    “It shall not be obligatory to appoint more than one new trustee where only one trustee was originally appointed, or to fill up the original number of trustees where more than two trustees were originally appointed; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust.”

    This section was amended in 1941 to add:

    “Provided that the Public Trustee or a trustee company may, irrespective of the original number of trustees, be appointed as a sole new trustee and the original trustee or trustees shall thereupon be discharged from the trust. Notwithstanding any other Act it shall not be necessary to obtain the consent of the Supreme Court to an appointment of the Public Trustee under this section.”

    Where a “trustee company” means any incorporated company upon which the power to act as a trustee has been conferred by an Act of the Parliament of the State.

    Before 1985 there were four “trustee companies” in South Australia established by the following enactments.

  • Executors Company’s Act 19885
  • Elder’s Executor Company’s Act 1910
  • Bagot’s Executor Company Act 1910
  • Framers’ Co-operative Executors Act 1919
  •  

    Section 16 provides for the vesting of trust property in new or continuing trustees without the need for any conveyance or assignment and prescribes the use of a Deed for the appointment and retirement of a trustee for vesting to be effective.

    Section 17 provides:

    “17(1) A trustee who, for the time being, is or is about to be absent from the State may, if not expressly prohibited by the instrument creating the trust, with the consent of his co-trustee (if any), by power of attorney, under seal, delegate, for the term not exceeding twelve calendar months from the date of the power of attorney, to any person or persons residing in the State, all or any of the powers, authorities, and discretions, vested in the trustee.

    This section amended……….

    The Trustee Act 1893 (SA) can be found here:

    Trustee Act 1893

    A copy of the original version as enacted can be found here. here:

    This enactment was current when The Provident & Guarantee Fund was established on the 23 December 1913

    Section 11 {Now Section 14} provided a statutory power of appointing new trustees, including the case where a trustee is dead or remains out of the State for more than twelve months.

    Section 13 {Now Section 16} provides for the vesting of trust property in new or continuing trustees without the need for any conveyance or assignment and prescribes the use of a Deed for the appointment and retirement of a trustee.

    Section 27 {Now Section 36} provides a power of the Court to appoint new trustees.

    Section 46 {Now included in the Limitations of Actions Act 1936 (SA)} provides a limitation period in relation to land or rent.

    Section 47 provides a power to the court to give judgement in the absence of a trustee.

    Section 77 {Now Section 90} confirms those parties entitled to apply to the Court by summons or petition.

    Section 78 {Now Section 91} confirms that Sections 63 and 99 of The Administration and Probate Act, 1891 apply in relation to seeking advice and directions from the Court.


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    This tab updated on 27 December 2015