Definitions and subject matter

• “Fund” is narrowly drawn: any property, real or personal, donated to or collected or otherwise acquired by trustees for charitable purposes or purposes of a public character; where partially used, the residue remains a fund (s 2). “Charitable purpose” is a defined term and “purpose of a public character” is given an extensive, non‑exhaustive list including war memorials, relief to persons affected by war or other circumstances, provision of parks and gardens, and institutions as per Crown Land Management Act 2016, Sch 7 cl 20 (s 2).
• “Dormant fund” is a fund determined under s 5A to be dormant; that determination is the statutory trigger for the Act’s substantive machinery (s 2; s 5A).

Dormancy criteria (s 5A)

• The Commissioner may determine dormancy where any one of: (a) trustees have not genuinely used the fund for the purposes for at least the immediately preceding six years; (b) it is not practicable to use the fund for those purposes; (c) it is unlikely that those purposes will be achieved within a reasonable time; (d) the trusts, objects or purposes are uncertain or cannot be ascertained; or (e) where the fund is held for certain institutions, that institution is not functioning as such (s 5A(1)).
• Investment alone or placing proceeds on deposit does not count as genuine use (s 5A(1) last sentence).

Investigatory and compulsion powers

• The Commissioner may require returns from trustees or persons holding funds, by notice in writing, post, or by publication in newspapers; failure without reasonable cause incurs a penalty not exceeding 0.5 penalty unit (s 6).
• The Commissioner can require accounts, statements, and answers, and may require verification by statutory declaration (s 7).
• The Commissioner can require attendance of trustees and persons for examination and invoke powers, protections and immunities similar to a royal commission commissioner (s 8). Notices under ss 7 or 8 can be served personally or by post; refusal or failure to comply is an offence (penalty not exceeding 2 penalty units) (s 9).

Valuation and proposals

• After investigations the Commissioner must issue a certificate as to value of the property forming the dormant fund; that certificate, filed in the Commissioner’s office and available for inspection, is conclusive evidence of value for the purposes of this Act (s 10).
• The Commissioner may formulate draft orders (proposals) for utilising the fund, establishing an administration scheme and appointing trustees, or transferring the fund to specified trustees and authorising application of the fund as if it formed part of the trust property of those trustees (s 11(1)-(2)). The NSW Trustee and Guardian and any existing trustee are eligible for appointment as trustees under s 11(2).

Approval, public notice, and Tribunal role

• For funds valued at or below $10,000 the Commissioner forwards proposals to the Attorney‑General; the Attorney‑General may approve, disapprove, or refer back, and approval by the Attorney‑General results in the Commissioner signing the draft order as an order of the Act (s 12).
• For funds exceeding $10,000 the Commissioner must publish a notice in the Gazette and at least one newspaper setting out inspection details and a date not earlier than 30 days for lodging requests to refer proposals to the Tribunal; the Commissioner must forward proposals to the Attorney‑General and either proceed to sign an order if the Attorney‑General approves, or send proposals to the Tribunal if requested or if persons request referral (s 13(1), (2), (3)).
• If proposals are referred to the Tribunal, the Tribunal may approve, vary or formulate proposals; orders finally approved by the Tribunal must be in the form of an order and may make provision with respect to matters in s 11(2) (s 13(4)-(6)).

Orders and effect (s 14-15)

• Orders can include directions for assurance, transfer, payment or vesting and may appoint persons to give effect if those directed refuse or neglect to comply (s 14). Non‑compliance attracts modest penalties.
• Orders are binding, give indemnity to bankers and trustees and are conclusive evidence that conditions precedent have been complied with and that the Commissioner/Tribunal had jurisdiction; orders may have the effect of Supreme Court orders under the Trustee Act in respect of appointment and vesting of trustees (s 15).

Appeal and review

• The Act removes ordinary judicial review of Commissioner’s determinations under s 5A (s 5A(4)), but provides a statutory appeal to the Civil and Administrative Tribunal against a determination under s 5A or a decision revoking such a determination (s 15B(1)). Appeals are by way of a new hearing and the Tribunal may confirm, quash and substitute or remit (s 15B(2)-(3)). A quashing of a revocation reinstates the underlying determination (s 15B(4)).

Procedural and evidentiary posture

• The Commissioner acts according to equity, good conscience and the substantial merits and is not bound by the rules of evidence (s 17). The Commissioner and Tribunal are explicitly not bound by the cy‑pres principle when formulating proposals (s 18).

Regulations and fees

• The Governor may make regulations for carrying the Act into effect (s 19(1)). Regulations may prescribe fees and charges, including a fee payable to the Commissioner for formulation of a proposal to be paid out of the fund, and allow the Minister to reduce or waive fees (s 19(2)). Regulations may permit fees to be calculated as a percentage of the value of a dormant fund regardless of its value (s 19(3)).

Registers and transparency

• The Commissioner must keep a register of all orders and must make the register and orders available for inspection at the Commissioner’s office without charge (s 15A(1)-(2)). Regulations may further provide for keeping and inspection (s 15A(3)).

Transitional provisions and savings

• Schedule 1 preserves prior determinations and pending appeals made under earlier provisions as continuing under the Act and contains provisions consequent on the 1995 Amendment (Sch 1 cl 2-6).

Primary actors

• Trustees and persons who hold or in whom funds are vested: the Act’s powers reach trustees of charitable or public‑purpose funds, including those who have custody of documents or control of moneys or securities forming part of such funds (s 2 definition of “fund”; ss 6-9). Trustees are the immediate legal subjects required to provide returns, accounts and attend examinations, and are the persons bound by orders made under the Act (ss 6, 7, 8, 15).
• The Commissioner of Dormant Funds: the officeholder for the time being is the Chief Executive Officer of the NSW Trustee and Guardian (s 4(2)). The Commissioner makes determinations of dormancy, carries out investigations, formulates proposals, issues certificates of value and keeps the register (ss 4, 5A, 6-11, 10, 15A).
• NSW Trustee and Guardian: the person holding that office is the Commissioner (s 4(2)), and the NSW Trustee and Guardian is eligible to be appointed as trustee under a proposed order (s 11(2)). That carries both an operational role and eligibility to receive appointment in respect of a dormant fund.

Decisionmakers and gatekeepers

• The Attorney‑General: holds an approval role for proposed orders where the fund value is $10,000 or less (s 12). For proposals where no referral to the Tribunal is made the Attorney‑General may approve, refer back or request referral to the Tribunal for higher value funds under s 13(2)(b).
• The Civil and Administrative Tribunal (Tribunal): the Tribunal exercises appellate review of Commissioner determinations under s 5A (s 15B) and may consider and finally approve, vary or substitute proposals referred to it under s 13(4)-(6). It is also the external appeal body under the Civil and Administrative Tribunal Act 2013 as noted by the statute (s 15B Note).

Interested persons and the public

• Persons “interested in the dormant fund” , which will include current and former trustees, donors (where known), beneficiaries, and potentially members of the public , are affected because they may be required to provide material (s 6-8) and they have procedural rights to inspect certificates and registers (s 10, s 15A(2)) and to request referral to the Tribunal where notice is given (s 13(1)(c)-(3)). Notice publication requirements under s 13 mean that the public at large may be given an opportunity to request referral for funds above $10,000.

Entities with potential concentrated benefit

• Trustees appointed under orders, including the NSW Trustee and Guardian and any existing trustee, are explicitly eligible for appointment (s 11(2)). Once appointed, those trustees may receive the dormant fund and apply it as authorised by the order (s 11(2)(b)-(c); s 15(5)).

Regulatory and enforcement actors

• Depositories and bankers: orders under the Act provide indemnities to bankers and other depositories for any act done pursuant to the order (s 15(2)). Depositories may be required to produce documents in response to an inquiry (s 7(c)), and are given protection once an order is made (s 15(2)).
• The Minister (under regulations): the regulations can allow the Minister to reduce or waive fees or charges prescribed under the regulations (s 19(2)(b)).

Who bears costs (direct and indirect)

• Trustees and persons who fail to comply with returns or notices may face penalty units (s 6; s 9; s 14(2)). The regulations permit fees and charges to be taken from the dormant fund itself, including calculation by percentage of the fund’s value (s 19(2)-(3)), and permits a fee payable to the Commissioner for formulation of a proposal to be paid out of the fund (s 19(2)(a)). Where orders require actions (assurance, transfer, payment or vesting) and persons refuse to comply, the Commissioner or Tribunal may appoint another person to execute instruments in the name of the recalcitrant person (s 14(3)-(4)). The certificate of value that the Commissioner issues is conclusive for purposes of the Act (s 10(3)), which has implications for fees or charges calculated from value.

Who decides and who can review

• The Commissioner makes the initial decision (s 5A). Judicial review by courts is curtailed in relation to s 5A determinations (s 5A(4)), but the Act provides an appellate route to the Tribunal for determinations and revocations (s 15B). The Attorney‑General has an approval role for funds up to $10,000 and an oversight role for larger funds where no request for Tribunal referral is made (ss 12, 13(2)). The Tribunal can reconsider proposals, hear new evidence and substitute determinations (s 15B(2)-(3)).

Duties imposed on trustees and others

• Obligation to furnish returns and particulars: on notice from the Commissioner trustees or persons by whom funds are held must furnish returns within the time specified (s 6(1)). The requirement can cover all funds or specified classes and may be effected by publication or personal/postal service (s 6(1)). Failure without reasonable cause, or provision of a materially false or misleading return, is an offence attracting up to 0.5 penalty unit (s 6(2)).
• Duty to render accounts, statements and answers: the Commissioner may require trustees, agents, depositories or persons having possession of documents to render written accounts and answers and may require statutory declaration verification (s 7(1)-(2)). Section 7 expressly limits the Commissioner’s power so as not to require information from persons asserting adverse claims to property contrary to the trustees’ interest (s 7(3)).
• Duty to attend and produce books and documents: the Commissioner can require attendance before the Commissioner or a designated officer for examination and production of records (s 8(1)). Notices must be in writing and served personally or by post (s 9(1)), and non‑compliance is an offence punishable by up to 2 penalty units (s 9(2)).
• Duty to comply with orders: orders made under the Act are binding and must be complied with by trustees or persons named or described in them (s 15(1)). Orders can include directions for assurance, transfer, payment or vesting (s 14(1)); failure to comply attracts penalties and, after 28 days of refusal or neglect, the Commissioner or Tribunal may appoint another person to effect the required instruments in the name of the directed person (s 14(2)-(4)).

Rights and protections given by the Act

• Access to information: a person interested in a dormant fund or its trusts has the right to inspect the Commissioner’s certificate of value (s 10(2)), and any member of the public may inspect the register and orders at the Commissioner’s office without charge during ordinary office hours (s 15A(2)).
• Indemnity for depositories and trustees: orders provide a complete indemnity to bankers, depositories and trustees named or described in the order for acts done pursuant to the order (s 15(2)).
• Appeal and fresh hearing rights: persons dissatisfied with a s 5A determination or a decision revoking a determination may appeal to the Tribunal; appeals are by way of new hearing with leave for the Tribunal to receive fresh or additional evidence (s 15B(1)-(2)). In an appeal the Tribunal can confirm, quash and substitute or remit (s 15B(3)).
• Conclusive valuation: the Commissioner’s certificate as to the value of property comprising a dormant fund is conclusive evidence of value for the purposes of the Act (s 10(3)). This provides certainty for calculation of fees (if regulations so provide) and for application of the proposal process.

Procedural rights specific to notice and referral (s 13)

• For funds exceeding $10,000 the Commissioner must publish a notice in the Gazette and at least one newspaper specifying where proposals may be inspected and fixing a date (not earlier than 30 days after Gazette publication) for lodging requests to refer proposals to the Tribunal; interested persons can lodge a request to refer (s 13(1)). There are exceptions where the Commissioner may dispense with newspaper publication for funds not exceeding $50,000 if the Commissioner considers the proposals clearly appropriate, but in that situation the Commissioner must send a copy of the notice to persons who are or were formerly trustees insofar as they are alive and their whereabouts are known (s 13(1A)). If a request for referral is received, the Commissioner must forward proposals to the Attorney‑General and refer them to the Tribunal (s 13(3)). A person who requested referral may withdraw the request before the Tribunal completes consideration (s 13(7)).

Limits and exclusions

• The Commissioner is not to regard investment or deposit of investment proceeds as genuine use of a fund (s 5A(1) sentence 2). The Commissioner’s investigative power does not extend to requiring information or production of deeds from persons holding or claiming to hold property adversely to the trustees or free of the trusts, in relation to that adverse holding (s 7(3)).
• Section 3(1) states explicitly the Act does not affect operation of the Unclaimed Money Act 1995, so where funds are subject to that Act that regime operates independently.

Regulatory competence and fee design

• Regulations may prescribe fees and charges and permit calculation of fees as a percentage of a fund’s value regardless of the fund’s value (s 19(2)-(3)). The regulations may also allow the Minister to reduce or waive fees (s 19(2)(b)). The Commissioner may require a fee payable for formulation of a proposal to be paid out of the fund (s 19(2)(a)).

Evidentiary approach and remedial powers

• The Commissioner acts according to equity and good conscience and is not bound by technical rules of evidence (s 17). The Commissioner can issue binding orders that have the effect of Supreme Court orders for appointment and vesting of trustees (s 15(5)(a)-(b)), and can add directions about assurance, transfer and vesting (s 14(1)), and can make those directions operative even where nominated persons refuse to act by appointing substitutes (s 14(3)-(4)).

Specified penalties and offences

• Failure to furnish a required return under s 6 without reasonable cause, or furnishing a materially false or misleading return, is an offence punishable by a penalty not exceeding 0.5 penalty unit (s 6(2)). The Act does not fix the monetary equivalent of a penalty unit; that value is governed elsewhere.
• Refusal, neglect or failure to comply with a Commissioner requirement under s 7 or s 8 (served under s 9) is an offence carrying a penalty not exceeding 2 penalty units (s 9(2)).
• Failure to comply with directions in an order under s 14(1) attracts a penalty not exceeding 1 penalty unit and a further penalty of up to 0.1 penalty unit for each day the offence continues (s 14(2)). After 28 days of refusal or neglect, the Commissioner or Tribunal may appoint another person to execute required instruments in the name of the person directed (s 14(3)-(4)), and such execution is conclusive and valid (s 14(4)).

Mechanisms for compelling performance

• Notices and requirements: the Commissioner may serve notices by publication in newspapers, by personal service or by post (s 6(1); s 9(1)). These notices can require provision of returns, accounts, statements and production of documents (ss 6-8). The Commissioner may require verification of accounts by statutory declaration (s 7(2)).
• Compulsory attendance and examination: the Commissioner may require attendance for examination and, for the purposes of examination, the Commissioner or appointed officer is treated as a sole commissioner for the purposes of Division 1 of Part 2 of the Royal Commissions Act 1923, and the provisions of that Act (except s 13 and Division 2 of Part 2) apply mutatis mutandis to the examination process (s 8(2)). That supplies coercive powers relating to summons, examination and production of documents (subject to the limitations in s 7(3)).
• Substitution for recalcitrant actors: where a person directed by order to effect an assurance, transfer, payment or vesting refuses or neglects to do so for 28 days, the Commissioner or Tribunal may appoint another person to execute those instruments in the name of the first‑mentioned person (s 14(3)). The substituted execution has the same force and validity as if executed by the directed person (s 14(4)).

Enforceability and finality of orders

• Orders made under the Act are binding upon trustees and persons named or described in them and are to be complied with (s 15(1)). They operate as complete indemnities to bankers, depositories and trustees for acts done pursuant to the order (s 15(2)). Persons named or described in orders are not required to inquire into the necessity or propriety of the order or into the authority of the Commissioner or Tribunal to make it (s 15(3)). The making of an order is conclusive evidence that all conditions precedent to making the order have been complied with and that the Commissioner or Tribunal had jurisdiction (s 15(4)). Orders for appointment and vesting have the effect of equivalent Supreme Court orders under the Trustee Act 1925 (s 15(5)). The register of orders is kept and the orders filed in the Commissioner’s office (s 15(6); s 15A).

Limitations on judicial review and the appeal route

• The Act limits challenges by courts to a determination or decision of the Commissioner under s 5A by declaring such determinations not reviewable in courts (s 5A(4)). The Act, however, supplies a statutory external appeal to the Civil and Administrative Tribunal for determinations under s 5A and decisions to revoke such determinations (s 15B(1)), with the Tribunal empowered to conduct a new hearing, receive fresh evidence, confirm or quash and substitute or remit the matter (s 15B(2)-(3)). An order quashing a revocation reinstates the underlying determination (s 15B(4)).

Administrative enforcement discretion and fee enforcement

• The regulations may permit fees and charges to be imposed and to be paid out of the dormant fund itself (s 19(2)(a)), and fees may be expressed as a percentage of the fund’s value (s 19(3)). The Minister may reduce or waive fees under the regulations (s 19(2)(b)). Fees payable out of the fund create an enforcement mechanism effectively self-contained in the fund: procedural costs of proposals may be borne by the fund rather than by trustees directly, as the regulations provide.

Evidentiary posture and practical enforcement risk

• The Commissioner is not bound by technical rules of evidence and may inform the Commissioner’s mind as appears just (s 17); this confers flexibility in investigations and a lower threshold for the Commissioner to act, which affects the practical contours of enforcement (for example, a certificate of value is conclusive for Act purposes (s 10(3))). The Act’s design thus emphasises an administrative rather than purely adversarial evidentiary approach.

Exclusion of Unclaimed Money Act (s 3)

• The Act expressly states that nothing in it affects the operation of the Unclaimed Money Act 1995 (s 3(1)). That means funds falling within the scope of the Unclaimed Money Act are to be governed by that Act and not displaced by the Dormant Funds Act; practitioners should therefore consider whether a fund is already subject to the unclaimed money regime before invoking the Dormant Funds Act.

Relation to Trustee Act 1925 (s 15(5))

• Where orders under the Dormant Funds Act provide for the appointment of trustees or for vesting of the dormant fund in trustees, the orders have the same effect as orders made by the Supreme Court under sections 70 and 78 of the Trustee Act 1925 respectively (s 15(5)(a)-(b)). Functionally, the Dormant Funds Act can produce the same legal effects as Supreme Court equitable remedies relating to appointment and vesting, without resort to the Supreme Court, by operation of a statutory process.

Interaction with Royal Commissions Act 1923 (s 8(2))

• For the purposes of examinations under s 8, the Commissioner or appointed officer has the powers, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923, and the provisions of that Act (except s 13 and Division 2 of Part 2) apply mutatis mutandis (s 8(2)). This imports into the Dormant Funds Act’s investigatory process powers similar to those of a royal commission commissioner, including summons and compelled testimony mechanisms, subject to the stated exceptions.

Civil and Administrative Tribunal Act 2013 connection (s 15B)

• Appeals from specified Commissioner decisions are external appeals to the Civil and Administrative Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 (s 15B Note). The Tribunal’s powers to hear new evidence, substitute determinations or remit matters are exercised pursuant to the appeal mechanism in s 15B and the relevant procedural framework in the Tribunal Act.

Crown Land Management Act 2016 reference (s 2)

• The Act’s definition of a “purpose of a public character” includes establishment, provision, conducting or carrying on of an institution as defined in cl 20 of Schedule 7 to the Crown Land Management Act 2016 (s 2). Practitioners dealing with funds held for such institutions should check the Crown Land Management Act definition and any related obligations.

Regulations and statutory instruments (s 19)

• The Governor is empowered to make regulations necessary or convenient for carrying the Act into effect (s 19(1)). Regulations may prescribe fees or fee calculations (s 19(2)-(3)) and may provide savings or transitional provisions consequent upon amendments (Schedule 1 cl 1). The statutory interaction therefore operates through the regulations which can shape fee structures and procedural detail.

Transitional savings (Schedule 1)

• Schedule 1 preserves determinations and pending appeals made under earlier versions of the Act as continuing under the current statutory provisions,for example, determinations in force under prior s 2(2) are taken to be determinations under s 5A from the commencement of s 5A (Sch 1 cl 2); appeals to Charity Referees pending when s 15B commenced are taken to be appeals under s 15B (Sch 1 cl 3). The schedule therefore manages legal continuity with earlier legislative arrangements.

Limitations on judicial review and statutory appeal

• Section 5A(4) excludes challenge in a court to a Commissioner determination under s 5A, but s 15B provides the exclusive statutory appeal route to the Tribunal in respect of determinations and revocations. This design circumscribes ordinary court‑based judicial review in favour of the administrative appeal process set out in the Act.

Conclusive valuations and consequential transactions

• The Commissioner’s certificate as to the value of the property in a dormant fund is conclusive evidence of that value for purposes of the Act (s 10(3)). Where regulations permit fees or charges to be calculated as a percentage of value, that conclusive certificate becomes the operative calculation point for those fees (s 19(3); s 10(3)).

Source‑stamped amendments in the Act text

• The statute text contains amendment annotations for many provisions. These annotations identify legislative interventions by year and schedule or section numbers. For example, s 2 shows amendments attributed to 1995 No 64, Sch 1; 2013 No 95, Sch 3.1; and 2017 No 17, Sch 4.22 (s 2 editorial notes). Section 4 was amended in 2009 (Am 2009 No 49, Sch 2.21). Section 5A was inserted in 1995 (s 5A: Ins 1995 No 64, Sch 1 [10]) and amended in 2017 (Am 2017 No 17, Sch 4.22 [2]). Part and heading insertions for Part 2 and Part 3 reflect 1995 amendments (pt 2 hdg and pt 3 hdg Ins 1995 No 64, Sch 1 [6], [9]).

Specific changes reflected in the text

• The modern structure shows significant consolidation resulting from the Dormant Funds Amendment Act 1995. Schedule 1 (Savings and transitional provisions) expressly deals with provisions consequent upon that 1995 Amendment Act (Sch 1 cl 1-6). Clause 2 of Schedule 1 takes prior determinations under older s 2(2) to be determinations under the current s 5A. Clause 3 converts pending appeals to the Charity Referees into appeals under s 15B. Clause 4 preserves the previous s 13 procedure for proposals formulated before the 1995 amendment in respect of funds exceeding certain thresholds. Clause 5 integrates the prior index of orders into the register established under s 15A. Clause 6 extends s 16A to matters Charity Referees were dealing with at the commencement of that section. These transitional provisions show legislative attention to continuity when the 1995 Act reformed the regime.

Later amendments and regulation references

• Section 13 was amended at various times: the notes list amending acts across the 1980s and 1995 and a 2013 substitution (s 13: Am 1984 No 153, Sch 16; 1985 No 231, Sch 5; 1987 No 48, Sch 6 (2); 1995 No 64, Sch 1 [12]; 2013 No 95, Sch 3.1 [6]-[8]), indicating changes to the referral and notice procedures over time. Section 15 shows amendments in 1987, 1995 and 2013 (s 15: Am 1987 No 48, Sch 6 (3); 1995 No 64, Sch 1 [13]; 2013 No 95, Sch 3.1 [10]). Section 17 was amended in 2013 (s 17: Am 2013 No 95, Sch 3.1 [12]). Section 19 contains amendment annotations as recent as 2023 No 39, Sch 6.13 and 2025 No 15, Sch 4, indicating regulatory fee and related powers were revisited in those instruments (s 19: Am ... 2023 No 39 ...; 2025 No 15, Sch 4).

Insertion and repeal patterns

• The Act has experienced insertions and repeals of provisions over time: for example, s 5 is marked repealed (s 5: Rep 2013 No 95, Sch 3.1 [5]). Sections 16 and 16A are indicated as repealed in 2013 (s 16: Rep 2013 No 95, Sch 3.1 [11]; s 16A: Ins 1995 No 64, Sch 1 [20], Rep 2013 No 95, Sch 3.1 [11]). Part 4 (Appeals) was substituted in 2013 (pt 4: Subst 2013 No 95, Sch 3.1 [11]), reflecting a shift to Tribunal‑based review.

Practical implication of amendments shown in text

• The 1995 amendments appear to have substantially reshaped the regime (insertion of s 5A, creation of Commissioner office provisions, Schedule 1 transitional provisions), while the 2013 amendments reworked appeals and evidentiary posture (new Part 4 and changes to s 17, s 15B). The 2023 and 2025 amendments listed in the s 19 annotations suggest more recent updates to the regulation power, notably in relation to fees. The text includes the specific amendment sources as footnotes; those are the only legislative history entries available in the supplied statute text.

Limitations on reconstructing legislative history

• The Act text provides annotations that identify amending statutes and schedules or items, but it does not include full explanatory memoranda, second reading speeches, or the text of the amending Acts. The schedule and inline amendment notes are the only historical material present in the source text provided; therefore a complete legislative history including policy debates, precise earlier wording, or dates of commencement beyond those recorded must be obtained from statutory records and the amending Acts themselves.

No cases or judicial decisions are cited in the supplied statute text

• The statute text supplied contains no reported judicial decisions, case names, or summaries of litigation that interpret the Dormant Funds Act. The only adjudicative body referenced in procedural terms is the Civil and Administrative Tribunal as the statutorily provided appellate body for certain Commissioner decisions (s 15B), but there are no reported Tribunal or court decisions included in the source document.

Limits on court review identified in the Act

• The Act itself constrains judicial review of Commissioner determinations under s 5A by saying such determinations “cannot for any reason be challenged before, or be reviewed, quashed or called into question by, any court” subject to the appeal right to the Tribunal (s 5A(4)). Because of that statutory bar, any litigation history would be concentrated in Tribunal decisions or in matters not subject to the s 5A exclusion; however, none are provided in the source text.

References to prior appeal mechanisms

• Schedule 1 preserves appeals to the Charity Referees that were pending at the commencement of s 15B by taking them to be appeals under s 15B (Sch 1 cl 3). The text therefore evidences a prior administrative or quasi‑judicial route (Charity Referees) that has been replaced by the Tribunal, but the source does not include decisions by Charity Referees.

What practitioners should do to find litigation

• The supplied source does not supply any litigation history. To locate case law or Tribunal decisions interpreting the Act or applying it to concrete disputes, practitioners will need to consult case law databases, Civil and Administrative Tribunal decisions, or court reporting services. The statutory notes identifying amending Acts are starting points for historical timelines, but they do not substitute for reported decisions.

The Commissioner’s identity and eligibility for appointment

• The person who is the Commissioner is the Chief Executive Officer of the NSW Trustee and Guardian (s 4(2)). The NSW Trustee and Guardian is also explicitly eligible for appointment as trustee under an order (s 11(2)). That structural overlap between the officeholder and a potential recipient of appointment is set out in the statute and will be salient for governance and conflict‑management considerations; the statute itself does not prescribe a recusal rule in that scenario.

Curtailment of court review and statutory appeal route

• Section 5A(4) removes the ability to challenge determinations under s 5A in a court, stating that such determinations “cannot for any reason be challenged before, or be reviewed, quashed or called into question by, any court.” The Act provides a statutory appeal to the Civil and Administrative Tribunal (s 15B), but practitioners should note the Act’s express bar to court‑based remedies in respect of s 5A decisions. Any person considering judicial review should first examine whether the Tribunal appeal route under s 15B applies and whether the particular decision is within s 5A’s scope.

Evidentiary flexibility and conclusive valuations

• The Commissioner is not bound by rules of evidence and may act according to equity and the substantial merits of the case (s 17). Coupled with the conclusive status of the Commissioner’s certificate of value (s 10(3)), this means that the Commissioner’s valuation and the administrative finding of dormancy have statutory finality for Act purposes unless successfully appealed to the Tribunal. Practitioners should therefore treat Commissioner valuations and findings as operationally decisive unless appealed.

Six‑year non‑use threshold and what counts as “use”

• A fund may be treated as dormant if trustees have not genuinely used it for at least the immediately preceding six years (s 5A(1)(a)). Importantly, mere investment of the fund or deposit of investment proceeds is not “use” for this purpose (s 5A(1) sentence 2). Trustees should take care to document genuine use or active steps toward use of funds whose application might otherwise be questioned after six years.

Notice and publication requirements with varying thresholds

• For funds exceeding $10,000 there is a statutory public notice and opportunity for persons to request referral to the Tribunal; there is a mechanism to dispense with newspaper publication for funds not exceeding $50,000 if the Commissioner considers proposals “clearly appropriate,” but in that case the Commissioner must notify known former or current trustees where their whereabouts are known (s 13(1)-(1A)). This creates different procedural exposure depending on valuation thresholds; practitioners should check valuations (and the service/inspection regime) early in the process.

Fees taken from funds and percentage calculation

• Regulations may permit a fee for formulation of a proposal to be paid out of the dormant fund and may permit fees to be calculated as a percentage of the fund’s value regardless of value (s 19(2)-(3)). That design means processes under the Act can be financed by the fund itself, which reduces direct outlays by trustees but reduces the residual value of the fund available to beneficiaries. Practitioners should confirm the current regulations to identify any percentage rates or calculation methods.

Substitution power for instruments and practical effect

• If a person directed to execute an assurance, transfer, payment or vesting refuses or neglects to do so for 28 days, the Commissioner or Tribunal may appoint another person to execute in the name of the first person (s 14(3)-(4)). The execution by the substitute is given the same force and validity as if done by the original person (s 14(4)). This mechanism effectively allows the statutory process to override private recalcitrance in instrument execution.

Attorney‑General’s role on small funds and its limits

• For funds with value not exceeding $10,000 the Attorney‑General’s approval is required for proposals (s 12). Where the Attorney‑General disapproves, the Commissioner can reformulate proposals and resubmit (s 12(3)-(4)). For funds above $10,000 the Attorney‑General may also request referral to the Tribunal or approve proposals in the absence of referral (s 13(2)(b)). The presence of executive approval for lower‑value funds and an Attorney‑General role generally introduces an administrative check which practitioners should factor in.

Register inspection without charge, but office hours limitation

• The register of orders must be kept and available for inspection without charge during ordinary office hours to any person who calls at the Commissioner’s office and asks to inspect it (s 15A(2)). Practitioners should note the inspection is on‑site and within ordinary office hours, and the regulations may add procedural detail (s 15A(3)).

Transitional and legacy matters

• Schedule 1 saves earlier determinations and pending appeals and brings them within the Act’s current machinery (Sch 1 cl 2-6). Practitioners handling matters that predate amendments should check for transitional treatment in Schedule 1 and trace whether a matter has been taken up under s 5A or s 15B by operation of the schedule.

Penalties are modest but cumulative

• The statutory penalties for non‑compliance are expressed in penalty units and are modest per incident (e.g. 0.5 and 2 penalty units, and 1 plus daily fines under s 14). However, the Act’s enforcement tools include substitution of actors and conclusive orders, so enforcement cost is not only fines but also loss of control over instruments and obligations to execute transfers effected by appointed substitutes.

No express timetables for appeals or notices beyond s 13

• The Act specifies a 30‑day minimum window for lodging requests to refer proposals in relation to funds over $10,000 (s 13(1)(c)), but it does not state other fixed statutory timeframes (for example, for bringing an appeal under s 15B) in the supplied text. Practitioners must check the Tribunal Act and regulations for time limits governing appeals and procedural steps.

Immediate triage and records preservation

• Identify whether any fund you manage falls within the Act’s definition: property donated, collected or otherwise acquired by trustees for a charitable purpose or a purpose of a public character, and treat residual amounts as funds if partially used (s 2). Maintain detailed records showing any application of the fund and the dates of use, as s 5A looks to genuine use over the immediately preceding six years (s 5A(1)(a)). Because investment alone does not count as use (s 5A(1) sentence 2), document active steps taken to implement charitable objectives (minutes, grants authorised, correspondence, project plans, attempts to find beneficiaries, expenditure).

Prepare for investigatory notices

• Have ready to hand trustees’ registers, bank statements, investment records, minutes and documents related to the objects of the fund and to any attempts to apply it. If the Commissioner serves a notice under s 6, respond within the specified time and with truthful particulars; a false or misleading return is an offence (s 6(2)), and failure without reasonable cause attracts penalty. Where accounts, statements or statutory declarations are required under s 7, ensure they are verified if asked and that supporting documents are available.

Responding to attendance requirements and examinations

• If served with a requirement to attend and be examined under s 8, comply with the notice served personally or by post (s 9(1)). Counsel or a legal representative should be prepared to attend where appropriate. Note that for purposes of examination the Commissioner or delegate has powers and protections similar to a royal commission commissioner (s 8(2)), so take subpoenas and summons seriously. If there are claims of adverse proprietary interests by third parties, s 7(3) limits the Commissioner’s power to compel production from those claiming an adverse holding, so identify and assert legitimate privileges or proprietary claims where applicable.

Valuation and fee exposure

• Before proposals are formulated, the Commissioner will issue a certificate as to value of the property forming the dormant fund and that certificate is conclusive for Act purposes (s 10(1)-(3)). Check valuation methodology and prepare evidence if contesting valuation will be necessary on appeal to the Tribunal. Be alert that regulations may provide for fees, including percentage fees of fund value to be paid from the fund itself (s 19(2)-(3)); obtain current regulations to calculate expected fees and consider whether the fund can reasonably bear those costs.

Engage early with the Commissioner and make representations

• The Commissioner is required to give due consideration to representations or suggestions made by trustees or other persons interested in a dormant fund before formulating proposals (s 11(3)). Submit clear, evidence‑based representations explaining why the fund should not be regarded as dormant or proposing alternative uses consistent with the trusts. If proposals are being formulated, try to influence them at the Commissioner stage before public notice or Tribunal referral.

Monitor notice and referral procedures for funds over $10,000

• For funds exceeding $10,000 watch for the Commissioner’s Gazette notice and newspaper publication describing where proposals can be inspected and giving the date by which requests to refer to the Tribunal must be lodged (s 13(1)). If the fund is between $10,000 and $50,000 the Commissioner may dispense with newspaper publication in favour of sending notice to known current or former trustees (s 13(1A)), so ensure the Commissioner has up-to-date contact details. If a person interested in the fund wants Tribunal review, act promptly to lodge the request in writing within the statutory window defined in the notice (s 13(1)(c)).

Prepare for Tribunal appeal where relevant

• If a determination under s 5A is served and you are dissatisfied, an appeal to the Civil and Administrative Tribunal is available under s 15B. Appeals are by way of new hearing and may include fresh evidence with the Tribunal’s leave (s 15B(2)). Assemble documentary evidence of genuine use, practicability assessments, minutes and evidence of attempts to achieve purposes, proof of trustees’ intentions, and any expert valuations or feasibility studies relevant to whether the fund can be used for the stated charitable purpose.

Consider alternative remedial or administrative proposals

• Where original purposes are uncertain or impracticable (s 5A(1)(b)-(d)), consider proposing a scheme of administration or alternate uses compatible with the trust, and provide evidence about why those uses are consistent with the fund’s charitable or public character. The Commissioner’s draft order options include authorising trustees to apply the income or proceeds for some trusts exclusively of others, establishing a scheme and appointing trustees, or transferring the fund to specified trustees with authorisation to apply the fund as if it were part of their trust property (s 11(2)). Propose concrete schemes that the Commissioner or Tribunal can adopt.

Prepare for possible appointment of trustees and vesting

• If a proposal contemplates appointment of trustees or vesting in new trustees, be ready to cooperate with vesting arrangements and to provide instruments required for transfer or assurance. If instructed by an order, non‑compliance risks penalties and substitution of the actor effecting the instrument by the Commissioner or Tribunal (s 14(2)-(4)). Ensure appropriate corporate or governance approvals are in place for institutional trustees such as NSW Trustee and Guardian if contemplated.

Audit and governance steps to avoid determination

• To avoid a s 5A determination, trustees should document active management of funds, attempt to effect the purposes (including correspondence with potential beneficiaries or institutions), consider whether charitable objects may be modified through consensual variation where lawfully permissible, and keep clear minutes authorising any distributions or steps taken. Maintain up‑to‑date contact details for former trustees and donors where known to ensure notice obligations under s 13(1A) are satisfied in the event the Commissioner considers dispensing with wider publication.

Check ancillary legislation and regulations

• Confirm whether the fund is already subject to the Unclaimed Money Act 1995, because the Dormant Funds Act expressly does not affect the operation of that Act (s 3(1)). Check current regulations made under the Dormant Funds Act for fees and procedural rules (s 19). Check the Civil and Administrative Tribunal Act 2013 for appeal procedures and time limits relevant to s 15B appeals.

Practical checklist summary

• Preserve evidence of “genuine use” and of active attempts to apply funds.
• Maintain and readily produce bank records,