sec.41Application of funeral benefit business trust fund

sec.41 Application of funeral benefit business trust fund

Subject to this Act, the funeral benefit business trust fund shall be held for and applied towards— the benefits provided by the corporation to contributors or other persons for whom or on whose behalf contributions have been made as provided for in the rules of the corporation, such benefits being payable pursuant to contracts entered into with contributors whether before or after the commencement of this Act; payments made pursuant to subsection (6) ; where the funeral, burial or cremation service or other service to be provided to the contributor or other person for whom or on whose behalf contributions have been made is provided by a funeral director or person other than the corporation in accordance with the contract in question, the payment of the surrender value of the contributions paid in respect of the business in accordance with subsection (6) ; provision for the proportion of contributions allowable to the corporation for or in connection with the management and operation of the business as provided by the corporation’s rules relating to the business; provision for the proportion of contributions allowable to the corporation for or in connection with the carrying out of the services pursuant to the contracts entered into with contributors whether before or after the commencement of this Act; subject to subsection (2) , payment of rates and taxes on and of moneys for maintenance and upkeep of any land or building in respect of which moneys have been invested pursuant to section 40 or any nominated property; and, notwithstanding any other Act or law, the fund shall not be available for and shall not be applied, directly or indirectly, for any other purpose and, without limiting the generality of the foregoing, no part of the fund shall be liable to be taken in execution under the order or process of any court at the instance of any creditor of the corporation. Subsection (1) applies despite the Corporations Act . Payment made pursuant to subsection (1) (f) in relation to any particular land or building or any particular nominated property shall not exceed the amount of interest, rents, dividends or other income or returns derived therefrom less an amount calculated as interest on the amount invested pursuant to section 40 in respect of such land or building or on the value of such nominated property as assessed by the State actuary, such interest being at a rate determined by the registrar after consultation with the State actuary. If provision can not be made in accordance with this part sufficiently out of the funeral benefit business trust fund to meet the payment of rates and taxes on and of moneys for maintenance and upkeep of any land or building in respect of which moneys have been invested pursuant to section 40 or any nominated property, the deficiency shall be made good from other moneys of the corporation. For the purpose of the application of or otherwise dealing with the funeral benefit business trust fund in accordance with this section or pursuant to any other provision of this Act, the corporation may convert into money any part of the fund not consisting of money with the consent of the registrar first had and obtained, which consent may be given subject to such terms and conditions as to realisable amount and otherwise as the registrar thinks fit; and for the purpose of deciding whether or not the registrar will give consent and, if so, subject to what terms and conditions, the registrar may require the corporation to obtain the recommendation of an actuary and may consult with the State actuary. Where the registrar is satisfied that any part of the funeral benefit business trust fund has been applied, directly or indirectly, for a purpose other than one specified in this section or one otherwise authorised by this Act, the registrar may direct in writing the corporation that or other person who so applied the part of the fund to restore the amount of money or the property or its value to the fund within the time notified in the writing. A corporation to which or other person to whom such a direction in writing is given shall comply with the terms thereof within the time specified therein. Maximum penalty—6 penalty units. Upon application made in writing to a corporation carrying on funeral benefit business for the payment from its funeral benefit business trust fund account of a benefit in respect of such business or a surrender value of contributions paid in respect of such business or a refund in whole or in part of contributions paid in respect of such business, the corporation, if satisfied— that the application is made in good faith by the applicant; and that a payment of the type applied for would in the circumstances be just; may make to the applicant, or to such other person as to the corporation may seem proper, a payment from the funeral benefit business trust fund account of such amount as it may deem just notwithstanding any provision of this Act or of the registered rules of the funeral benefit business or of the contract under which the contributions were paid and notwithstanding that no provision of this Act or of such registered rules or of such contract authorises or envisages such a payment to any person or to the person to whom the corporation proposes to make payment. Nothing, however, in subsection (6) authorises— the payment, in a case where a service is provided, of an amount exceeding the amount applicable to that service; or the payment of the amount of a surrender value of contributions paid other than such an amount calculated in accordance with the registered rules. A corporation registered to carry on funeral benefit business shall not, in connection with the carrying on of such business, borrow any money except that, for the temporary accommodation of the funeral benefit business trust fund account, it may obtain advances in such manner, to such extent and on such conditions as may be approved by the registrar. Maximum penalty—2 penalty units. Subject to this section, a corporation registered to carry on funeral benefit business shall not dispose of or mortgage, charge or otherwise encumber any property forming part of the funeral benefit business trust fund without the approval of the registrar first had and obtained. Maximum penalty—2 penalty units. In determining whether he or she will grant approval as aforesaid, the registrar may require the corporation in question to obtain the recommendation of an actuary or authorised accountant or a valuer and may consult with the State actuary. Notwithstanding any other provision of this Act, a corporation registered to carry on funeral benefit business may, with the approval of the registrar first had and obtained, apply moneys from the funeral benefit business trust fund account for a purpose other than a purpose specified in subsection (1) provided that it is a purpose in connection with the carrying out of such business. In determining whether he or she will grant approval as aforesaid, the registrar may require the corporation in question to obtain the recommendation of an actuary or authorised accountant or a valuer and may consult with the State actuary. Subject to subsection (11) , a transaction shall not be invalidated by reason only that it has been entered into in contravention of subsection (8) , but nothing in this subsection affects the liability of a corporation or any other person to a penalty in respect of any such contravention. The court may, on the application of the registrar, make an order invalidating a transaction entered into in contravention of subsection (8) , but the court shall not make any such order if it is satisfied that the effect of the order (if made) would be to prejudice the rights of any person in respect of, or arising out of, the transaction which have been acquired in good faith and without knowledge of the contravention. An offence against subsection (7) or (8) is a continuing offence and may be charged in 1 or more complaints for periods the offence continues. Maximum penalty for each day the offence continues after a conviction against subsection (7) or (8) —1 penalty unit. s 41 amd 1990 No. 85 s 5 sch 2 ; 1993 No. 82 s 3 sch 1 ; 2001 No. 45 s 29 sch s 2 – 3 ; 2003 No. 73 s 158 ; 2005 No. 14 s 2 sch (sec.41-ssec.1) Subject to this Act, the funeral benefit business trust fund shall be held for and applied towards— the benefits provided by the corporation to contributors or other persons for whom or on whose behalf contributions have been made as provided for in the rules of the corporation, such benefits being payable pursuant to contracts entered into with contributors whether before or after the commencement of this Act; payments made pursuant to subsection (6) ; where the funeral, burial or cremation service or other service to be provided to the contributor or other person for whom or on whose behalf contributions have been made is provided by a funeral director or person other than the corporation in accordance with the contract in question, the payment of the surrender value of the contributions paid in respect of the business in accordance with subsection (6) ; provision for the proportion of contributions allowable to the corporation for or in connection with the management and operation of the business as provided by the corporation’s rules relating to the business; provision for the proportion of contributions allowable to the corporation for or in connection with the carrying out of the services pursuant to the contracts entered into with contributors whether before or after the commencement of this Act; subject to subsection (2) , payment of rates and taxes on and of moneys for maintenance and upkeep of any land or building in respect of which moneys have been invested pursuant to section 40 or any nominated property; and, notwithstanding any other Act or law, the fund shall not be available for and shall not be applied, directly or indirectly, for any other purpose and, without limiting the generality of the foregoing, no part of the fund shall be liable to be taken in execution under the order or process of any court at the instance of any creditor of the corporation. (sec.41-ssec.1A) Subsection (1) applies despite the Corporations Act . (sec.41-ssec.2) Payment made pursuant to subsection (1) (f) in relation to any particular land or building or any particular nominated property shall not exceed the amount of interest, rents, dividends or other income or returns derived therefrom less an amount calculated as interest on the amount invested pursuant to section 40 in respect of such land or building or on the value of such nominated property as assessed by the State actuary, such interest being at a rate determined by the registrar after consultation with the State actuary. (sec.41-ssec.3) If provision can not be made in accordance with this part sufficiently out of the funeral benefit business trust fund to meet the payment of rates and taxes on and of moneys for maintenance and upkeep of any land or building in respect of which moneys have been invested pursuant to section 40 or any nominated property, the deficiency shall be made good from other moneys of the corporation. (sec.41-ssec.4) For the purpose of the application of or otherwise dealing with the funeral benefit business trust fund in accordance with this section or pursuant to any other provision of this Act, the corporation may convert into money any part of the fund not consisting of money with the consent of the registrar first had and obtained, which consent may be given subject to such terms and conditions as to realisable amount and otherwise as the registrar thinks fit; and for the purpose of deciding whether or not the registrar will give consent and, if so, subject to what terms and conditions, the registrar may require the corporation to obtain the recommendation of an actuary and may consult with the State actuary. (sec.41-ssec.5) Where the registrar is satisfied that any part of the funeral benefit business trust fund has been applied, directly or indirectly, for a purpose other than one specified in this section or one otherwise authorised by this Act, the registrar may direct in writing the corporation that or other person who so applied the part of the fund to restore the amount of money or the property or its value to the fund within the time notified in the writing. (sec.41-ssec.5A) A corporation to which or other person to whom such a direction in writing is given shall comply with the terms thereof within the time specified therein. Maximum penalty—6 penalty units. (sec.41-ssec.6) Upon application made in writing to a corporation carrying on funeral benefit business for the payment from its funeral benefit business trust fund account of a benefit in respect of such business or a surrender value of contributions paid in respect of such business or a refund in whole or in part of contributions paid in respect of such business, the corporation, if satisfied— that the application is made in good faith by the applicant; and that a payment of the type applied for would in the circumstances be just; may make to the applicant, or to such other person as to the corporation may seem proper, a payment from the funeral benefit business trust fund account of such amount as it may deem just notwithstanding any provision of this Act or of the registered rules of the funeral benefit business or of the contract under which the contributions were paid and notwithstanding that no provision of this Act or of such registered rules or of such contract authorises or envisages such a payment to any person or to the person to whom the corporation proposes to make payment. (sec.41-ssec.6A) Nothing, however, in subsection (6) authorises— the payment, in a case where a service is provided, of an amount exceeding the amount applicable to that service; or the payment of the amount of a surrender value of contributions paid other than such an amount calculated in accordance with the registered rules. (sec.41-ssec.7) A corporation registered to carry on funeral benefit business shall not, in connection with the carrying on of such business, borrow any money except that, for the temporary accommodation of the funeral benefit business trust fund account, it may obtain advances in such manner, to such extent and on such conditions as may be approved by the registrar. Maximum penalty—2 penalty units. (sec.41-ssec.8) Subject to this section, a corporation registered to carry on funeral benefit business shall not dispose of or mortgage, charge or otherwise encumber any property forming part of the funeral benefit business trust fund without the approval of the registrar first had and obtained. Maximum penalty—2 penalty units. (sec.41-ssec.8A) In determining whether he or she will grant approval as aforesaid, the registrar may require the corporation in question to obtain the recommendation of an actuary or authorised accountant or a valuer and may consult with the State actuary. (sec.41-ssec.9) Notwithstanding any other provision of this Act, a corporation registered to carry on funeral benefit business may, with the approval of the registrar first had and obtained, apply moneys from the funeral benefit business trust fund account for a purpose other than a purpose specified in subsection (1) provided that it is a purpose in connection with the carrying out of such business. (sec.41-ssec.9A) In determining whether he or she will grant approval as aforesaid, the registrar may require the corporation in question to obtain the recommendation of an actuary or authorised accountant or a valuer and may consult with the State actuary. (sec.41-ssec.10) Subject to subsection (11) , a transaction shall not be invalidated by reason only that it has been entered into in contravention of subsection (8) , but nothing in this subsection affects the liability of a corporation or any other person to a penalty in respect of any such contravention. (sec.41-ssec.11) The court may, on the application of the registrar, make an order invalidating a transaction entered into in contravention of subsection (8) , but the court shall not make any such order if it is satisfied that the effect of the order (if made) would be to prejudice the rights of any person in respect of, or arising out of, the transaction which have been acquired in good faith and without knowledge of the contravention. (sec.41-ssec.12) An offence against subsection (7) or (8) is a continuing offence and may be charged in 1 or more complaints for periods the offence continues. Maximum penalty for each day the offence continues after a conviction against subsection (7) or (8) —1 penalty unit.