Trustee’s Power of Delegation – Section 17

Section 17 of the Trustee Act 1936 (SA) as originally enacted provided:

17 (1) A Trustee who, for the time being, is or about to be absent from the State may, if not expressly prohibited by the instrument crating the trust, with the consent of his co-trustee (if any), by power of attorney, under seal, delegate, for a 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.

Every deed, act, matter, and thing executed, done and performed by any such attorney or attorneys shall be as valid and effectual as if executed, done, and performed by the trustee.

A trustee who remains out of jurisdiction for more than twelve months may be removed against his will; see Re Stoneham’s Settlement Trusts, Popkiss v Stoneham [1953] Ch 59, [1952] 2 All ER 694.

The Court has the power pursuant Section 36 of the Trustee Act 1936 (SA)to remove a trustee from office where a trustee had gone to reside abroad permanently (Re Bignold’s Settlement Trust, (1872) 7 Ch App 223, 41 LJ Ch 235)

One of the reasons for the out of jurisdiction provisions is so that the trustee has access to the State Supreme Court if the need arises for the trustee to seek advice and directions {Section 91 of the Trustee Act 1936 (SA) so that the trustee is protected from a personal liability in the event of a breach of trust in relation to the matter for which advice was sought {Section 56 of the Trustee Act 1936 (SA)}.

With the passage of the Jurisdiction of Courts (Cross-Vesting) Acts 1987 there would now be grounds to amend the jurisdiction from State to Australia, however no State has yet amended its Trustee Act, South Australia included.

The South Australian Act limits the period of delegation to 12 months (unless on military service – s17A) which is more restrictive than other states.

NSW limits the delegation period to a maximum of two years, whilst there is no prescribed limit in other states.

Details of Section 17 can be found here.

Out of Jurisdiction Legislation in other States

Other States have similar out of jurisdiction legislation.

New South Wales

Section 64 of the Trustee Act 1925 (NSW) provides for a trustee who is absent from NSW or about to depart from NSW may by registered Deed delegate the execution of the trust.

The delegation shall not operate beyond two years from the date of the Deed and the trustee must return to NSW before the delegation period can be extended.

Details of Section 64 can be found here.

Victoria

The Victorian section is rather different. Section 30 – Power to delegate trusts during absence abroad of the Trustee Act 1958 (Vic).

It will be noted that the Victorian section is framed in much wider terms that the New South Wales section. It applies not only to situations where trustees absent themselves temporarily from the State, but also in situations where the absence is permanent.Moreover, whereas in NSW the delegation cannot be for more than two years (and can only be made on one occasion), in Victoria there is no limit on the time it can endure or the number of ocassions it can be made.

Details of Section 30 can be found here.

Queensland

The corresponding Queensland section, Section 56 of the Trusts Act 1973, is similar to the Victorian Section, but is even wider in its ambit.

It comprehends, in addition to trustees who are (temporarily or permanently) absent from the State, trustees (residing in or out of the State) who are or about to become, by reason of physical infirmity, temporarily incapable of performing all their duties as trustees.

Details of Section 56 can be found here.

Western Australia

Section 54 of the Trustee Act 1962 (WA) is almost identical with Section 56 of the Queensland Act.

Details of Section 54 can be found here.

Tasmania

In Tasmania, the power of delegation is , by Section 25AA of the Trustee Act 1898.

Such trustees may only delegate if there are other trustees, if the co-trustees consent, and if the trust instrument does not expressly prohibit delegation.

Details of Section 25AA can be found here.

Case Law

In re Bignold’s Settlement Trusts

In re Harrisons’s Trusts

 
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This tab updated on 29 December 2015