Presbyterian Trusts Act 1890 (Victoria)

The Presbyterian Trusts Act 1890 creates a statutory mechanism for centralising the legal ownership and management of property held for the Presbyterian Church of Victoria. Mechanically, the Act authorises the General Assembly of the Church to resolve to constitute a corporate body of trustees (the "Trusts Corporation"), to enrol Model Trust Deeds, to vest property in that corporate body, and to regulate the appointment, succession and registration of trustees (see sections 3-6, 12-14, 17-21). The Registrar‑General is the administrative conduit: a certified copy of the General Assembly’s resolution is delivered to the Registrar‑General (s. 4), who registers it and prompts a Government Gazette notice that creates the corporation and brings vesting and other mechanisms into effect (s. 5).

Key mechanical changes introduced by the Act include:

Immediate statutory vesting, without further conveyance, of property held “for or on behalf of the church generally” into the Trusts Corporation on incorporation, subject to stated exceptions and encumbrances (s. 6).
A process for transferring other church properties into the Trusts Corporation where trustees and the congregation (where applicable) consent, with the Moderator able to substitute consent in certain circumstances (ss. 7-10).
Statutory operation of Model Trust Deeds: property held without a formal declaration of trust is to be held on the trusts and subject to the provisions of the Model Trust Deeds unless excluded (s. 18), and the Registrar‑General is required to enrol those Model Trust Deeds (s. 17).
A statutory Register of Trustees maintained by the Moderator, whose authenticated entries operate to vest legal estate in newly recorded trustees without separate conveyance (ss. 21-24).

Victorian Legislation and Parliamentary Documentsi Version No. 002 Presbyterian Trusts Act 1890 Act No. 1175/1890 Version incorporating amendments as at 23 April 2002 TABLE OF PROVISIONS Section Page

Short title 2
Definitions 2
General Assembly may pass resolution to form corporate body of trustees 3
Certified copy of resolution to be delivered to Registrar-General 4
Corporate trustees to be constituted and may take and hold property 4
Certain property to vest in corporate trustees immediately 5
Other church properties may be transferred to corporate trustees 6
Moderator may consent to transfer for certain trustees 6
Properties for which there are no trustees to vest in corporate trustees 7
Registrar-General or Registrar of Titles to carry out transfers to corporate trustees 8
Gifts to church before incorporation to have same effect afterwards 8
Appointment of corporate trustees 8
Successor in office to become trustee in place of predecessor 9
Management of property vested in corporate body of trustees 9 14A. Power to Trust Corporation to invest moneys separately or in Common Fund 10 14B. Allocation of income received on investments made from Common Fund 12 14C. Trusts Corporation shall be responsible 14
Corporate body of trustees may convey to congregational trustees for purpose of mortgaging 14
Trustees appointed hereunder to be trustees of property 15
Enrolment of Model Trust Deeds 15
Certain property to be held in trusts of Model Trust Deeds 15
Model Trust Deeds may be adopted in other cases 16
Conveyances transfers etc. by majority of trustees sufficient 17
"Register of Trustees" 18
Amendment of register 19
Legal estate to pass to new trustees without conveyance 20

Victorian Legislation and Parliamentary DocumentsSection Page ii 24. Proof of entries in register and certificates 20 25. Rules 21

SCHEDULES 23 SCHEDULE 1—Certificates as to Trustees of Church Property 23 SCHEDULE 2—"The Presbyterian Register of Trustees" 24 ═══════════════ ENDNOTES 25

General Information 25
Table of Amendments 26
Explanatory Details 27

Victorian Legislation and Parliamentary Documents1 Version No. 002 Presbyterian Trusts Act 1890 Act No. 1175/1890 Version incorporating amendments as at 23 April 2002 An Act to provide for the creation of a Corporate Body of Trustees in which Property belonging to "The Presbyterian Church of Victoria" may be vested and for other purposes. Preamble WHEREAS by an Act passed in the twenty-second year of Her present Majesty numbered LXXXII as amended by Act No. CCCXXI, it was enacted that all hereditaments estates and temporal privileges and all equitable rights belonging to certain Presbyterian bodies and the congregations thereof should belong to "The Presbyterian Church of Victoria" and the several congregations thereof subject to the decisions and judicatories of the said church only: AND WHEREAS the General Assembly of the said church has adopted Model Trust Deeds (hereinafter called "The Model Trust Deeds of the Presbyterian Church of Victoria") to the intent that certain property belonging to the said church may be held upon the trusts thereof: AND WHEREAS the said Model Deeds were deposited with the Registrar-General on the eleventh day of March One thousand eight hundred and seventy-nine and are numbered respectively four thousand three hundred and seventy-nine and four thousand three hundred and eighty: AND WHEREAS the members of the said church are desirous that a corporate body of trustees should be created for the purpose of holding the property of the said church, and that for the better management thereof certain property of the said

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 2 church should be vested in such corporate body, and that the trusts upon which the property of the said church is held should be assimilated so far as possible to the trusts contained in the said Model Deeds, and that the conveyance and transfer of such property should be facilitated and rendered less expensive: BE IT THEREFORE ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

Short title This Act shall be called and may for all purposes be cited as the Presbyterian Trusts Act 1890.
Definitions In this Act, unless inconsistent with the subject- matter or context, the following words shall have the meanings hereinafter respectively assigned to them: 1"Church" means the Presbyterian Church of Victoria continuing to function under the name or style of the Presbyterian Church of Victoria in accordance with clause 18 of Part III of the Schedule to the Presbyterian Church of Australia Act 1971; "Common Fund" means the Common Fund authorized to be established and kept in the books of the Trusts Corporation pursuant to sub-section (1) of section fourteen A; "General Assembly" shall mean the General Assembly of the Presbyterian Church of Victoria, convened in accordance with the rules practice and usages of the said church; s. 1 S. 2 def. of "Church" substituted by No. 9344 s. 3(1). S. 2 def. of "Common Fund" inserted by No. 7310 s. 2(a).

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 3 "General Assembly's Trustees" shall mean the persons who previously to the creation of the corporate body of trustees hereinafter mentioned have been appointed by the General Assembly as trustees for the property of the church; "Moderator" shall mean the Moderator for the time being of the General Assembly of the Presbyterian Church of Victoria; "property" shall mean land promised or reserved by the Crown for any of the purposes of the Presbyterian Church of Victoria or of any of the bodies mentioned in the said Act No. LXXXII, as amended by the Act No. CCCXXI, and all property real and personal including money or securities for money held by or vested or purporting to be vested in or claimable by any person or persons either in trust generally for the said Church or for any congregation thereof or for any special purpose in connexion therewith or for the benefit or use of the members thereof as such or of any person or persons holding for the time being office therein; "Trusts Corporation" means the corporate body of trustees constituted under this Act under the name of the Presbyterian Church of Victoria Trusts Corporation. 3. General Assembly may pass resolution to form corporate body of trustees The General Assembly may if it thinks fit pass a resolution expressing its desire— (a) that a corporate body of trustees be constituted for the purpose of holding property in trust for the church; S. 2 def. of "Trusts Corporation" inserted by No. 7310 s. 2(b). s. 3

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 4 (b) that the persons nominated in the resolution as trustees be the corporate body of trustees; (c) that such trustees be incorporated under the name specified in the resolution. Nothing in this section shall affect any separate trust, but such trust shall continue in force after the trust estate shall have been transferred to or vested in the corporate body of trustees under the provisions hereinafter contained. 4. Certified copy of resolution to be delivered to Registrar-General As soon as may be after the passing of such resolution the Moderator shall cause a copy thereof duly certified under his hand to be delivered to the Registrar-General, who shall retain and register the same. 5. Corporate trustees to be constituted and may take and hold property Within one month of the registration of such resolution the Registrar-General shall give notice thereof by advertising the same at length in the Government Gazette, and thereupon the trustees named in such notice and their successors to be appointed as hereinafter provided shall be a body corporate by the name stated in such notice, and shall have perpetual succession and a common seal, and may sue and be sued, and may acquire take and hold any property in trust for the church, and may receive any moneys which have been or shall be given or contributed by any person or persons to be applied to any of the purposes of the church, and may take over any securities for money held by any person or persons on behalf thereof, and may take in the name of such corporate body any securities for money belonging to the church which shall be lent or s. 4

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 5 advanced on account thereof, and shall deal with all such property and securities so as to give effect to the trusts to which they shall be specially subject or when not subject to any express trust in such manner as this Act hereinafter provides or the General Assembly may from time to time direct, but so as not to interfere with the jurisdiction of the Supreme Court in the enforcement of trusts. 6. Certain property to vest in corporate trustees immediately Immediately upon the incorporation of the corporate body of trustees, all property held by any person or persons for or on behalf of the church generally other than property which at the passing of this Act is held on behalf of or occupied or used by or for the purposes of any existing congregation of the church or of the minister thereof and all property held and all securities taken for money advanced by the General Assembly's trustees for and on behalf of the church, and all property situated in any place in which no congregation being or forming part of a settled charge recognised as such by the General Assembly exists at the time of such incorporation, shall without any further conveyance or transfer vest in the corporate body of trustees, and the Registrar-General or the Registrar of Titles (as the case may be) shall make the proper transfer thereof in his register. Provided that if any such property is subject to any mortgage charge or encumbrance it shall not vest in the corporate body of trustees until the mortgage charge or encumbrance has been discharged or the corporate body of trustees by memorandum in writing undertakes to answer any liability in respect of such mortgage charge or encumbrance. Provided also that the properties known as Ormond College s. 6

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 6 the Scotch College and the Presbyterian Ladies' College shall not vest in the corporate body of trustees until the General Assembly by a special vote in that behalf shall so direct. 7. Other church properties may be transferred to corporate trustees From and after the registration of such resolution, where any persons hold any property in trust for or on behalf of the church, and in case such property is held on behalf of or occupied or used by or for the purposes of any congregation of the church with the consent of the majority of the members and adherents of such congregation present in person or by proxy at a meeting duly convened for that purpose, and with the approval of the General Assembly the trustees or a majority of them may if they think fit consent to a transfer of the property to the corporate body of trustees upon the trusts to which the same is subject, and such transfer when completed and accepted by the corporate body shall from and after the date thereof operate as a discharge of all the trustees from the duties of the trust. 8. Moderator may consent to transfer for certain trustees In the circumstances mentioned in the last preceding section, if by reason of death absence from Victoria for six months in succession or any other disability the consent of any trustee to the transfer as aforesaid cannot be obtained, the Moderator may by writing under his hand consent to such transfer in place of any such trustee; and if such consent be published in the Government Gazette and in some newspaper circulating in the place where the property to which the consent refers is situate, and if within a month from the last publication of such advertisements no s. 7

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 7 proceedings be taken therein by the person in whose name such consent is given, such consent shall upon the expiration of such month be as effective for the purpose of this Act as a consent given by the person in whose place the consent is declared to have been given. 9. Properties for which there are no trustees to vest in corporate trustees If in any case the person or all the persons in whom any property is vested die or be absent from Victoria for six months in succession or cannot be found or resign or be removed from office or become otherwise incapable of holding such property, of which incapacity the General Assembly shall be the sole and final judge, and if those who are lawfully authorized to elect or appoint a successor or successors to such person or persons refuse or neglect to do so for the space of one month after being called upon by the Moderator to make such election or appointment, or if there be no person lawfully authorized to elect or appoint such successor or successors, then forthwith the Moderator may by certificate in writing under his hand in the form and to the effect in Part I of the First Schedule to this Act declare that there are no trustees of such property and thereupon such property shall vest in the corporate body of trustees, and the certificate shall have the same effect as if the trustee or trustees who had died or left Victoria or could not be found or had resigned or had been removed from office or become otherwise incapable of holding such property had duly executed a conveyance or transfer of the property in the same manner and for the same estate. s. 9

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 8 10. Registrar-General or Registrar of Titles to carry out transfers to corporate trustees Upon obtaining the written consent of the majority of the trustees of any property held by them on behalf of the church (either under their own hands or that of the Moderator as hereinbefore mentioned) to the transfer to the corporate body of trustees of such property, or upon receiving the certificate of the Moderator that there are no trustees of any property as in the last preceding section mentioned and upon receiving the acceptance by the corporate body of trustees of the transfer to it of such property, the Registrar- General or the Registrar of Titles (as the case may be) shall make the proper transfer thereof in his register, and thereupon without further conveyance or transfer the whole estate and interest of the trustees of such property shall vest in such corporate body. 11. Gifts to church before incorporation to have same effect afterwards After the incorporation of the corporate body of trustees every donation gift and disposition of property real or personal theretofore lawfully made (but not having actually taken effect) or thereafter lawfully made by deed will or otherwise to or in favour of such church generally or the General Assembly's trustees or any person for or on behalf of the church generally shall take effect as if the same had been made to or in favour of the corporate body of trustees. 12. Appointment of corporate trustees The corporate body of trustees appointed for the purposes of this Act and their successors shall be appointed in such manner and shall hold their office for such term and upon such conditions, and vacancies in such offices shall be filled in such s. 10

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 9 manner, as the General Assembly shall by any rule or regulation from time to time prescribe. 13. Successor in office to become trustee in place of predecessor When any person who has been appointed a trustee by virtue of his office whether clerical or lay ceases to hold such office his successor thereto shall, upon the certificate in writing of the Moderator of the vacating of the office by the last holder thereof and of the appointment of the person named therein as his successor and of his acceptance of the office, become a trustee under his official designation in the stead of the person last registered under such designation. 14. Management of property vested in corporate body of trustees All property becoming vested in the corporate body of trustees as hereinbefore mentioned or which shall in any manner be acquired by such corporate body shall, so far as the same is subjected to any express trust, be held managed and dealt with by such corporate body in conformity with such expressed trust and shall so far as the same is not subject to any express trust be held managed and dealt with in such manner as the General Assembly may from time to time direct, and such property shall be subject as to the management thereof to the rules or regulations of the General Assembly in force for the time being which are applicable thereto. All property which at the passing of this Act is managed and administered under the Act 8 William IV cap. 7 shall for the purposes of this section be deemed to be held upon an express trust. s. 13

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 10 14A. Power to Trust Corporation to invest moneys separately or in Common Fund (1) The Trusts Corporation may in its discretion invest any moneys in its hands whether or not they are subject to any express trust either— (a) on the separate account of any trust; or (b) (if the moneys are not directed to be invested in some other specified manner and investment in a Common Fund is not specifically prohibited by the terms of the trust governing the said moneys) as part of a "Common Fund" established and kept in the books of the Trusts Corporation. (2) The Trusts Corporation shall have power to invest moneys (whether forming part of the Common Fund or not)— (a) in any manner in which trust moneys may be invested by a trustee under the Trustee Act 1958 or any other Act; (b) on deposit with any bank or State savings bank carrying on business in the Commonwealth of Australia; (c) in the purchase or acquisition or improvement of freehold or leasehold land within the Commonwealth of Australia; or (d) subject to such terms provisions and conditions as are prescribed by or under any general or special order of the Supreme Court or a Judge thereof, in any manner authorized by any such order. (3) Investments made from moneys forming part of the Common Fund shall not be made on account of or belong to any particular trust, but the Trusts Corporation shall cause to be kept in the books of the Trusts Corporation an account showing at all S. 14A inserted by No. 7310 s. 3. s. 14A

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 11 times the current amount at credit in the Common Fund on account of each trust. (4) (a) The Trusts Corporation may in its discretion make advances from the Common Fund for any purpose of or relating to the Church. (b) Any sum so advanced shall be deemed an investment of moneys forming part of the Common Fund and shall bear interest at a rate fixed by the Trusts Corporation and the sum advanced and the interest thereon shall be deemed to be a charge on the assets of the Church. (5) The Trusts Corporation may sell investments belonging to the Common Fund and may withdraw any of the moneys belonging to the Common Fund for any purpose of or relating to the exercise and discharge of its powers authorities duties and functions under this or any other Act or under any trust. (6) The Trusts Corporation may in its discretion at any time withdrawn from the Common Fund any amount at credit in the Common Fund on the account of any trust and may invest such amount on the separate account of that trust. (7) Amounts so withdrawn from the Common Fund shall as from the date of such withdrawal cease to have any claim for interest or otherwise from the Common Fund. (8) No capital appreciation or depreciation in the value of any investments made from the Common Fund shall be deemed or taken to increase or diminish the amount at credit in the Common Fund on the account of any particular trust, and on the withdrawal from the Common Fund of any amount invested therein the trust in question shall be entitled to be credited with the actual amount s. 14A

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 12 which was so invested without regard to any such appreciation or depreciation. 14B. Allocation of income received on investments made from Common Fund (1) Income received from the investment of the moneys forming part of the Common Fund shall be part of that Fund and shall be credited to an account to be called the "Income Suspense Account" and shall be allocated therefrom as hereinafter provided. (2) On each amount at credit in the Common Fund interest at the appropriate rate fixed from time to time by the Trusts Corporation shall at all such times and intervals as the Trusts Corporation determines be allocated and transferred from the Income Suspense Account to the credit of each other trust or account entitled for the time being to the interest on the said amount; and the Trust Corporation may fix different rates of interest according to the source and nature of the different amounts invested in the Common Fund, the periods for which they are so invested and such other factors as the Trusts Corporation considers relevant. (3) No trust or account shall be entitled in respect of any amount at credit in the Common Fund to any further or other interest than the interest allocated and paid as provided in the last preceding sub- section. (4) At such time or times in each year as the Trusts Corporation determines such amount of the moneys at credit in the Income Suspense Account as the Trusts Corporation deems necessary shall, after providing for all interest to be carried to the credit of each trust and account as aforesaid, be carried to the credit of an account to be called the "Common Fund Reserve Account". S. 14B inserted by No. 7310 s. 3. s. 14B

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 13 (5) All capital profit made upon the realization of investments from the Common Fund shall also be carried to the credit of the Common Fund Reserve Account and all capital losses incurred upon such realization carried to the debit of that account. (6) Moneys standing to the credit of the Common Fund Reserve Account may be withdrawn and applied for all or any of the following purposes— (a) payment of any costs and expenses incurred in protecting investments made from the Common Fund; (b) payment of such other costs expenses and charges incurred in respect of the Common Fund or investments made therefrom as in the opinion of the Trusts Corporation are properly chargeable against the Common Fund Reserve Account; (c) payment of any legal costs expenses and charges not ordered by the court to be charged against a particular trust and not otherwise properly chargeable against a particular trust; (d) payment of any legal costs expenses and charges not ordered by the court to be charged against a particular trust but otherwise properly chargeable against a particular trust where the funds in the particular trust are insufficient to meet such costs expenses and charges; and (e) payment of any costs expenses and charges incurred by the Trusts Corporation in obtaining legal advice or in legal proceedings to which the Trusts Corporation is or is made a party where such costs expenses and charges are such that, by reason of the general importance of the s. 14B

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 14 subject-matter of the advice or proceedings, they should not, in the opinion of the Trusts Corporation, be charged against a particular trust. 14C. Trusts Corporation shall be responsible The Trusts Corporation shall be responsible for investing and keeping invested the Common Fund. 15. Corporate body of trustees may convey to congregational trustees for purpose of mortgaging When any property is held in trust for or on behalf of any congregation of the church by the corporate body of trustees, and in case it is desired to mortgage charge or otherwise encumber such property, the corporate body of trustees shall on a resolution being passed by the General Assembly to that effect convey and transfer such property to such trustees in this section called the congregational trustees as shall be nominated by the congregation and appointed by the presbytery to which such congregation belongs in accordance with the rules and regulations of the church, the congregational trustees shall upon such conveyance or transfer hold such property for the purpose of effecting or executing a mortgage charge or other encumbrance thereon and not otherwise, and may effect and execute such mortgage charge or other encumbrance accordingly, but upon the payment or other discharge of the moneys secured thereon the property shall without any further conveyance or transfer re-vest in the corporate body of trustees, and shall be held for all purposes as if such property had not been conveyed or transferred to the congregational trustees. S. 14C inserted by No. 7310 s. 3. s. 14C

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 15 16. Trustees appointed hereunder to be trustees of property When after the passing of this Act any land which has been granted promised or reserved by the Crown for any of the purposes of the church shall be brought under the provisions of the Act No. CCCXCI the corporate body of trustees appointed under the provisions of this Act may be the trustees of such land. 17. Enrolment of Model Trust Deeds The Registrar-General shall enrol in the office of the said Registrar-General "The Model Trust Deeds of the Presbyterian Church of Victoria" (hereinbefore referred to) when such deeds are presented or tendered to him for that purpose by or on behalf of the Moderator. 18. Certain property to be held in trusts of Model Trust Deeds Subject and without prejudice to any mortgage charge encumbrance lien or lease affecting the same, all property except the properties known as Ormond College the Scotch College and the Presbyterian Ladies' College which is now held or which may hereafter be acquired by any person or persons for the use or benefit of the church without any formal declaration of trust shall be held upon the trusts and subject to the provisions of "The Model Trust Deeds of the Presbyterian Church of Victoria" or either of them so far as the same may be applicable or any future alteration modification or variation thereof duly authorized by the General Assembly, which alteration modification or variation the General Assembly is hereby empowered from time to time to make. s. 16

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 16 Provided that nothing in this section shall empower the General Assembly to make any alteration modification or variation which shall be inconsistent with the provisions of the said Act passed in the twenty-second year of Her present Majesty numbered LXXXII. 19. Model Trust Deeds may be adopted in other cases Where any property other than the properties known as Ormond College the Scotch College and the Presbyterian Ladies' College is held upon any trust or trusts other than those contained in "The Model Trust Deeds of the Presbyterian Church of Victoria" or either of them, if such property is held on behalf of or occupied or used by or for the purposes of any congregation or the minister thereof, it shall be lawful for such congregation by a vote of the majority of the members and adherents thereof present in person or by proxy at a meeting duly convened for that purpose and with the approval of the General Assembly and of the trustees or a majority of them and of the person lawfully appointed as the ordained minister of such congregation, and if such property is held for or on behalf of the church generally and is not held on behalf of or occupied or used by or for the purposes of any congregation or the minister thereof it shall be lawful for the General Assembly to resolve that such property shall from and after the passing of such resolution be held upon the trusts of the said Model Trust Deeds or one of them and thereupon the trusts upon which such property was held previously to the passing of such resolution shall absolutely cease and determine, and such property shall thenceforth, but subject and without prejudice to any mortgage charge encumbrance lien or lease affecting the same, be held by the trustee or trustees thereof upon the trusts of the said Model Trust Deeds or s. 19

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 17 one of them or any future alteration modification or variation thereof duly authorized by the General Assembly. 20. Conveyances transfers etc. by majority of trustees sufficient When any sale mortgage exchange or lease of any church land (whether held upon the trusts of "The Model Trust Deeds of the Presbyterian Church of Victoria" or either of them or otherwise) is made in pursuance of and in conformity with such trusts or the trusts upon which the same is held— (1) the transfer conveyance mortgage exchange or lease shall be made with the consent in writing of the Moderator and shall have no force or effect without such consent: Provided that this sub-section shall not apply to any mortgage or lease of any church land which the trustees thereof by virtue of the Act or deed under which the same is held have at the time of the passing of this Act power to mortgage or lease without the consent of the General Assembly, but such trustees shall nevertheless give notice in writing to the Moderator of any such mortgage or lease prior to the execution thereof; (2) the transfer mortgage exchange or lease of such land if under the operation of the Transfer of Land Act 1890 shall be as effectual, if signed by a majority of the trustees for the time being of such land named in the "Register of Trustees" (hereinafter mentioned) as if such transfer mortgage exchange or lease had been duly signed by all the trustees so named; and s. 20

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 18 (3) in case such land shall not be under the operation of the said Act, the conveyance mortgage exchange or lease thereof, if executed by a majority of the trustees for the time being thereof named in such "Register of Trustees," shall be deemed to pass the legal estate therein as fully and effectually as if all the trustees in whom the legal estate was vested had joined in executed or made such conveyance mortgage exchange or lease. Provided that any trustee absent from Victoria may join in any contract for sale mortgage exchange or lease and may execute any such conveyance transfer mortgage exchange or lease as aforesaid by his attorney duly appointed by him in that behalf. 21. "Register of Trustees" (1) The Moderator shall keep or cause to be kept a "Register of Trustees" of all property other than property vested in the corporate body of trustees hereinbefore mentioned; (2) such register shall be called and inscribed as "The Presbyterian Register of Trustees," and shall be in the form and to the effect in the Second Schedule hereto; (3) the Moderator shall with all reasonable despatch enter or cause to be entered in such "Register of Trustees" the names and additions of the present trustees of such property with all other particulars indicated in the Second Schedule hereto; (4) the Moderator shall from time to time, upon the due appointment of any new trustee or trustees of any church property, insert or cause to be inserted in such "Register of Trustees" the name and s. 21

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 19 addition of such new trustee or trustees, together with the date of the insertion of his or their name or names in such "Register of Trustees," and how the vacancy in the trust occurred whether by death or otherwise; (5) the Moderator shall sign his name in such "Register of Trustees" in the proper column in the same line with the name of every trustee, whether he be an old or a new trustee, to authenticate the due appointment of such trustee; (6) the Moderator may at any time or times issue a certificate, in the form or to the effect in Part II of the First Schedule hereto, under his hand stating who is or are the trustee or trustees of any particular property specified therein at the date of such certificate, and who was or were such trustee or trustees at any particular date specified in such certificate; and (7) such "Register of Trustees" shall on all reasonable occasions be open to the inspection of the members of the said church and all others interested therein. 22. Amendment of register The Moderator may at any time amend the "Register of Trustees" by rectifying any error or supplying any omission therein, and shall attest such amendment by writing his initials in the margin together with the date of his so writing, but shall not erase or render illegible the part so amended, and the register so amended shall have all the validity and operation by this Act conferred upon the "Register of Trustees." s. 22

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 20 23. Legal estate to pass to new trustees without conveyance Upon the insertion and authentication as aforesaid in the "Register of Trustees" of the name or names of any new trustee or trustees of any property not under the operation of the Transfer of Land Act 1890, such property shall forthwith vest in such new trustee or trustees solely or jointly (as the case may be) with the continuing trustee or trustees (if any) for all the estate or interest of the former trustee or trustees therein, and upon and subject to the same trusts without any conveyance or assignment whatsoever and upon the insertion and authentication as aforesaid in the said "Register of Trustees" of the name or names of any new trustee or trustees of property under the operation of the said Act such new trustee or trustees for the time being thereof and the trustee or trustees for the time being appearing by the "Register of Trustees" to be the trustee or trustees of any property under the Transfer of Land Act 1958 shall be entitled to be registered at the Office of Titles as the proprietor or proprietors thereof within the meaning of the said Act without any formal transfer, and to have any necessary recordings made in the Register, but subject to any then subsisting encumbrance appearing in the Register affecting the same. 24. Proof of entries in register and certificates The entries in the "Register of Trustees" authorized by section twenty-one of this Act to be made therein when authenticated by the signature of the Moderator, and any certificate duly signed by the Moderator under the provisions hereof shall respectively be received in evidence in all legal proceedings and in all proceedings before the Commissioner of Titles or Registrar of Titles and on all occasions whatsoever as prima facie S. 23 amended by No. 18/1989 s. 13(Sch. 2 item 67) (as amended by No. 11/2002 s. 3(Sch. 1 item 60). s. 23

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 21 evidence of all matters containing or recited in such entries when the "Register of Trustees" is produced and of all matters contained or recited in such certificate whenever such certificate is produced. 25. Rules (1) The General Assembly may, in accordance with the rules practice and usages for the time being recognised by the church, from time to time make rules— (a) for the appointment and removal of members of the corporate body of trustees and filling up vacancies occurring in the trusteeship; (b) for the custody of the seal of the corporate body of trustees, and the affixing the same to any document, and for verifying the affixing thereof; and (c) for the appointment and removal of the trustees and filling up of vacancies occurring in the trusteeship of any property not vested in the corporate body of trustees and not held under any Act of Parliament or deed containing any specific provision for the appointment and removal of trustees; and (d) for carrying into effect the provisions of this Act— and may from time to time alter or vary the same. (2) A copy of every such rule and of any alteration or variation thereof certified by the Moderator shall be deposited with the Registrar-General, and advertised in the Government Gazette. s. 25

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 22 (3) A duly certified copy of any such rule alteration or variation so deposited and advertised shall be prima facie evidence of the same having been duly made.

s. 25

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 23 SCHEDULES FIRST SCHEDULE CERTIFICATES AS TO TRUSTEES OF CHURCH PROPERTY PART I I hereby certify that there are no trustees of [here specify particular church property]. Dated this day of 189 Moderator. PART II I hereby certify that [here insert names and addresses of the trustees for the time being or for the time specified (as the case may be) as shown by the Register of Trustees] are (or were on the day of 18 ) the trustees of [here specify the particular church property]. Dated this day of 189 Moderator.

Sections 9, 21. Sch. 1

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 24 SECOND SCHEDULE "THE PRESBYTERIAN REGISTER OF TRUSTEES" Folio 1 [words of description such as "Scots' Church, Collins-street, Melbourne"] "comprised in conveyance registered the day of 189 No. of Memorial [insert] Book " [insert]. If under the "Transfer of Land Act 1890" [insert] "comprised in Certificate of Title entered in Register Book, Vol. [insert]. Fol. [insert] ." [If Crown reservation or other title, concisely specify.] NUMBER OF TRUSTEES [state number] Name of Trustee Addition of Trustee Date of Appointment of new Trustee Date of Insertion of name of new Trustee herein How Vacancy occurred in Trust, such as death or the like Date of ceasing to be a Trustee and cause Signature of Moderator A.B. Bourke-st. west, Melbourne, merchant. C.D. Similar. E.F. ,, G.H. ,, I.J. ,, K.L. ,, M.N. ,, O.P. ,, 2 Dec., 1890. 1 Jan., 1891. By death of A.B., a former Trustee. ═══════════════ Section 21. Sch. 2

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 25 ENDNOTES

General Information The Presbyterian Trusts Act 1890 was assented to on 6 October 1890 and came into operation on 6 October 1890. Endnotes

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 26 2. Table of Amendments This Version incorporates amendments made to the Presbyterian Trusts Act 1890 by Acts and subordinate instruments2. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Presbyterian Trusts (Common Fund) Act 1965, No. 7310/1965 Assent Date: 23.11.65 Commencement Date: 23.11.65 Current State: All of Act in operation Presbyterian Trusts Act 1979, No. 9344/1979 Assent Date: 20.12.79 Commencement Date: 22.6.77: s. 1(3) Current State: All of Act in operation Transfer of Land (Computer Register) Act 1989, No. 18/1989 (as amended by No. 11/2002) Assent Date: 16.5.89 Commencement Date: 3.2.92: Government Gazette 18.12.91 p. 3488 Current State: All of Act in operation ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Endnotes

Victorian Legislation and Parliamentary DocumentsAct No. 1175/1890 Presbyterian Trusts Act 1890 27 3. Explanatory Details(2) 1 S. 2 def. of "Church": Section 3(2) of the Presbyterian Trusts Act 1979, No. 9344/1979 reads as follows: (2) As on and from 22 June 1977 the Principal Act shall be read and construed and have effect, subject to the Uniting Church in Australia Act 1977 and the Presbyterian Church of Australia Act 1971, as if any reference to church or to the Presbyterian Church of Victoria however described in the model trust deeds of the Presbyterian Church of Victoria or in any other instrument or document made before 22 June 1977 were a reference to the Presbyterian Church of Victoria continuing to function under that name or style in accordance with clause 18 of the Schedule to the Presbyterian Church of Australia Act 1971. 2 Table of Amendments: The amendments proposed by section 5(1) of the Presbyterian Church of Australia Act 1971, No. 8102/1971 were never proclaimed. Section 5 was subsequently repealed by section 2 of the Statute Law Revision (Repeals) Act 1982, No. 9863/1982. Endnotes

1 Presbyterian Trusts Act 1890

Victorian Legislation and Parliamentary Documentsi Version No. 002 Presbyterian Trusts Act 1890 Act No. 1175/1890 Version incorporating amendments as at 23 April 2002 TABLE OF PROVISIONS Section Page

Short title 2
Definitions 2
General Assembly may pass resolution to form corporate body of trustees 3
Certified copy of resolution to be delivered to Registrar-General 4
Corporate trustees to be constituted and may take and hold property 4
Certain property to vest in corporate trustees immediately 5
Other church properties may be transferred to corporate trustees 6
Moderator may consent to transfer for certain trustees 6
Properties for which there are no trustees to vest in corporate trustees 7
Registrar-General or Registrar of Titles to carry out transfers to corporate trustees 8
Gifts to church before incorporation to have same effect afterwards 8
Appointment of corporate trustees 8
Successor in office to become trustee in place of predecessor 9
Management of property vested in corporate body of trustees 9 14A. Power to Trust Corporation to invest moneys separately or in Common Fund 10 14B. Allocation of income received on investments made from Common Fund 12 14C. Trusts Corporation shall be responsible 14
Corporate body of trustees may convey to congregational trustees for purpose of mortgaging 14
Trustees appointed hereunder to be trustees of property 15
Enrolment of Model Trust Deeds 15
Certain property to be held in trusts of Model Trust Deeds 15
Model Trust Deeds may be adopted in other cases 16
Conveyances transfers etc. by majority of trustees sufficient 17
"Register of Trustees" 18
Amendment of register 19
Legal estate to pass to new trustees without conveyance 20

Victorian Legislation and Parliamentary DocumentsSection Page ii 24. Proof of entries in register and certificates 20 25. Rules 21

SCHEDULES 23 SCHEDULE 1—Certificates as to Trustees of Church Property 23 SCHEDULE 2—"The Presbyterian Register of Trustees" 24 ═══════════════ ENDNOTES 25

General Information 25
Table of Amendments 26
Explanatory Details 27

Centralisation of legal title: The Act substitutes a statutory ownership and holding structure by enabling the General Assembly to create a corporate trustee, the Presbyterian Church of Victoria Trusts Corporation, that can take and hold property in trust for the Church (s. 3-5). On incorporation, property held for the church generally vests in that body without further conveyance (s. 6), subject to mortgages and certain exclusions.

Model Trust Deeds and automatic trusts: The Act adopts and gives statutory effect to pre‑existing Model Trust Deeds. The Registrar‑General is to enrol the Model Trust Deeds (s. 17); property held without formal declaration of trust is to be held on the trusts of those Model Trust Deeds unless specifically excluded (s. 18). The General Assembly retains power to alter those Model Trust Deeds subject to the Act under which the Church’s property rights were previously regulated (s. 18, proviso).

Trusts Corporation investment framework and Common Fund: Later amendments (notably the 1965 Common Fund Act) add a statutory investment regime. The Trusts Corporation may invest trust moneys separately or within a Common Fund (s. 14A). The Common Fund is to be accounted for by trust‑specific ledger entries (s. 14A(3)); income from Common Fund investments flows first into an Income Suspense Account and is then allocated to trusts at rates fixed by the Trusts Corporation (s. 14B(1)-(3)). Capital gains and losses are carried to a Common Fund Reserve Account (s. 14B(5)), which may be used for defined Common Fund costs and some legal expenses (s. 14B(6)). The Trusts Corporation is responsible for investing and maintaining the Common Fund (s. 14C).

Administrative records and registration: The Act imposes a register obligation on the Moderator to keep “The Presbyterian Register of Trustees” (s. 21) and authorises the Moderator to issue certificates that have prima facie evidentiary force in legal proceedings (s. 24; First Schedule). Entries authenticated by the Moderator operate to vest legal estate in new trustees without conveyance (s. 23). The Registrar‑General or Registrar of Titles executes statutory transfers to the Trusts Corporation where required (s. 10).

Moderator powers and General Assembly control: The Act assigns specific operational powers to the Moderator (delivery of certified resolutions to the Registrar‑General at s. 4; issuing certificates where trustees cannot be found at s. 9; signing register entries at s. 21). The General Assembly determines appointment and removal rules for the Trusts Corporation and trustees and makes rules for practical operation, with certified rules to be deposited with the Registrar‑General and notified in the Gazette (s. 12; s. 25).

Transactional facilitation and exceptions: The Act streamlines transactions by allowing majority trustees to effect transfers, mortgages or leases (s. 20(2)-(3)), and by permitting the Trusts Corporation to convey property to nominated congregational trustees for the limited purpose of mortgaging it (s. 15). Exclusions and constraints are express: certain collegiate properties will not vest in the corporate trustees until a special General Assembly vote (s. 6; s. 18). The Supreme Court’s jurisdiction to enforce trusts remains undisturbed (s. 5).

Statutory interactions: The Act contemplates interaction with the Trustee Act 1958 for investment powers (s. 14A(2)(a)), Deposit and banking institutions for cash investments (s. 14A(2)(b)), and the Transfer of Land provisions where the Transfer of Land Act applies (s. 20(2); s. 23; see endnotes regarding amendments to reflect later Transfer of Land Acts).

Trusts Corporation and General Assembly: The primary institutional actors affected are the General Assembly of the Presbyterian Church of Victoria and the Trusts Corporation constituted under this Act. The General Assembly gains statutory powers to establish the corporate trustee, to set its rules of appointment and governance (s. 3; s. 12; s. 25), and to direct management of property not subject to an express trust (s. 14). The Trusts Corporation gains the legal capacity to hold, invest, borrow against, and manage church property and funds, including powers to pool funds into a Common Fund and to make internal advances (ss. 5; 14A-14C).

Individual trustees and congregational trustees: Existing individual trustees and newly appointed trustees are directly affected by the statutory register and vesting provisions. The Moderator’s authenticated entries in the Register of Trustees operate to change legal ownership without separate conveyance (s. 23). Congregations and their members are affected where property held by or for a congregation may be transferred into the Trusts Corporation, but transfers of property used by a congregation require a meeting of the congregation and approval by the General Assembly and the trustees (s. 7; s. 19).

Ministers and office‑holders: The Act provides that trustees appointed because of their office (clerical or lay) are automatically succeeded by the office’s incumbent upon certified notification by the Moderator (s. 13). This affects incumbents, who acquire trusteeship by virtue of office rather than separate appointment.

Property beneficiaries and donors: Donors, bequests and gifts made to the church or to the General Assembly’s trustees before or after incorporation are to have effect as if made to the corporate body of trustees after incorporation (s. 11). Beneficiaries of specific trusts should be attentive to the Model Trust Deeds (s. 18) because property held without formal declaration is placed on those Model Trust Deeds by operation of the Act.

Registrar‑General and Registrar of Titles: Administrative officers in the land system are implicated. The Registrar‑General receives certified copies of resolutions and is required to enrol the Model Trust Deeds (ss. 4; 17). The Registrar‑General or the Registrar of Titles must make transfers in their registers to give effect to vestings and transfers to the corporate body of trustees (s. 10). Government Gazette publication obligations also fall on the Registrar‑General when incorporation occurs (s. 5) and for certain notices required by the Act (s. 25(2)).

Third parties dealing with church property: Purchasers, mortgagees, banks and other financiers are affected in that the Trusts Corporation may invest in bank deposits, acquire mortgages, and permit mortgages via transfer to congregational trustees for the sole purpose of securing borrowing (s. 14A(2)(b); s. 15). The Act also permits majority trustee signatures to bind the trust in dealings so long as the Moderator’s consent is obtained for disposals in some cases (s. 20).

Legal system and courts: The Act preserves the Supreme Court’s jurisdiction to enforce trusts (s. 5). Courts and title offices will receive Moderator‑authenticated registers and certificates as prima facie evidence in proceedings (s. 24).

Excluded institutions: The Act expressly excludes the properties known as Ormond College, Scotch College and the Presbyterian Ladies’ College from automatic vesting until the General Assembly directs otherwise (s. 6; s. 18). Those institutions and their governing bodies remain outside the immediate automatic operation of the statutory vesting mechanism unless and until the specified vote occurs.

Duties of the General Assembly: The General Assembly may resolve to form the Trusts Corporation (s. 3) and must prescribe appointment, term, vacancy and removal rules for trustees of the corporate body (s. 12). It may direct the management of property not subject to express trusts (s. 14) and may from time to time make rules for operation and trustee appointment for properties not vested in the corporate trustees (s. 25). The General Assembly also has the power to adopt, alter or vary the Model Trust Deeds (s. 18), albeit subject to limitations in earlier Acts referenced in the proviso to s. 18.

Moderator’s duties and powers: The Moderator must cause a certified copy of the General Assembly resolution to be delivered to the Registrar‑General (s. 4), and must sign the Register of Trustees entries that authenticate trustees’ appointments (s. 21(5)). The Moderator can consent to transfers where an individual trustee’s consent cannot be obtained due to death, absence or incapacity (s. 8) and may certify that there are no trustees where a vacancy exists in the trustee body (s. 9). The Moderator also issues trustee certificates in the form prescribed by the First Schedule (s. 21(6); Sch. 1).

Registrar‑General and Registrar of Titles duties: The Registrar‑General must retain and register the certified resolution establishing the corporation (s. 4), advertise incorporation in the Government Gazette (s. 5), enrol the Model Trust Deeds when presented (s. 17), and make register transfers where required (s. 10). The Registrar of Titles is similarly directed to make transfers when property is under the Transfer of Land regime (s. 10).

Trusts Corporation rights and responsibilities: Upon incorporation, the Trusts Corporation acquires perpetual succession, a common seal, capacity to sue and be sued, and statutory authority to take and hold property in trust for the Church (s. 5). It has powers to receive donations, take-over securities and to deal with property in conformity with express trusts or General Assembly directions (s. 5; s. 14). Under ss. 14A-14C the Trusts Corporation may invest funds separately or in a Common Fund, keep detailed accounts, make advances from the Common Fund on interest terms and be responsible for investing and keeping invested the Common Fund (ss. 14A(1)-(7); 14B; 14C).

Trustees’ rights and delegated authority: The statutory construction permits a majority of trustees to execute transfers, mortgages, exchanges or leases and to have such instruments treated as fully effective even if not all trustees sign (s. 20(2)-(3)), subject to the Moderator’s written consent where required (s. 20(1)). Trustees of property held for congregations may nominate congregational trustees for the purpose of mortgaging through a statutory conveyance and transfer back upon discharge (s. 15).

Register and certificate evidentiary effect: Entries authenticated by the Moderator in the Register of Trustees and certificates issued under Part II of the First Schedule are prima facie evidence in legal proceedings and before title registrars (s. 24). This creates a statutory administrative record that has presumptive evidential weight.

Duties to creditors, encumbrances and exclusions: Property subject to a mortgage, charge or encumbrance does not vest in the Trusts Corporation until the encumbrance is discharged or the Trusts Corporation gives a written memorandum undertaking to answer the liability (s. 6). Similarly, certain institutional properties are excluded from immediate vesting until a special General Assembly vote (s. 6; s. 18).

Rule‑making and publication duties: The General Assembly must deposit certified copies of any rules governing trustee appointment and operation with the Registrar‑General and have them advertised in the Government Gazette (s. 25(2)). Certified copies of rules are prima facie evidence of their making (s. 25(3)).

Limitations and judicial oversight: The Act explicitly preserves the Supreme Court’s jurisdiction over trust enforcement (s. 5), signifying that equitable remedies and judicial oversight remain available despite statutory vesting and administrative mechanisms.

Statutory enforcement mechanisms: The Act primarily effects administrative and property rights changes and provides mechanisms for transfer, registration and evidentiary proof. It does not create express criminal penalties or fines for non‑compliance within the text provided. Enforcement therefore operates through title registration, statutory vesting, and the preservation of equitable jurisdiction in the Supreme Court (s. 5). Where trustees or the Trusts Corporation fail to carry out duties or where disputes arise, the Supreme Court retains authority to enforce trusts and to adjudicate contested rights.

Registrar and Registrar‑of‑Titles obligations: The Act places duties on the Registrar‑General and Registrar of Titles to register resolutions, enrol Model Trust Deeds and effect transfers (ss. 4, 10, 17). Non‑performance by those officers would be a public administration issue but the Act itself does not set out a statutory sanction or penalty; affected parties would expect to seek relief in the courts or through administrative complaint processes.

Evidentiary weight and presumptions: The Act elevates Moderator‑authenticated register entries and certificates (s. 24) to prima facie evidence in legal proceedings and before title registrars. This evidentiary presumption shifts enforcement and proof burdens in disputes over trusteeship or title: a person relying on Trusts Corporation records can produce the authenticated register or certificate to establish legal position unless rebutted.

Obligations tied to commercial dealings: Banks and purchasers will rely on the statutory capacities of the Trusts Corporation and on the Register of Trustees for title. Where a majority of trustees sign transfers or mortgages (s. 20(2)-(3)), third parties can treat those instruments as effectual. The Act’s provisions promoting transactional certainty reduce title risk for third parties, but do not eliminate the possibility of later equitable claims; the Supreme Court retains jurisdiction (s. 5).

Administrative remedies: The Act provides internal administrative processes: the Moderator’s power to declare the absence of trustees (s. 9) and to consent in place of absent or incapacitated trustees (s. 8), and the duty to update the Register of Trustees (s. 21). Failure to follow these statutory processes could be challenged by interested parties seeking rectification, injunctive relief, or declarations in the courts.

Common Fund and financial accountability: ss. 14A-14B set up accounts and allocation rules and permit the Common Fund Reserve Account to be used for defined costs and legal expenses (s. 14B(6)). The Act does not prescribe an external audit regime or penalties for misapplication of Common Fund monies in the provisions provided; misapplication would be a matter for internal governance action by the General Assembly and for possible judicial proceedings.

Absence of express penal sanctions: Because the Act contains no express monetary penalties or criminal offences, enforcement is achieved by administrative registration, statutory presumptions of title and by preserving judicial oversight. Parties seeking to enforce rights or to challenge actions under the Act should expect to proceed through equitable remedies in the Supreme Court, and to rely on the statutory evidentiary framework established by ss. 21-24.

Trust law and the Supreme Court: The Act expressly preserves the Supreme Court’s jurisdiction in the enforcement of trusts (s. 5). That preserves the overlay of equitable principles and remedies even where the Act creates statutory vesting or administrative presumptions. Trustees, beneficiaries and third parties must therefore consider both statutory mechanics and equitable duties.

Trustee Act 1958 and investment powers: Section 14A(2)(a) authorises investments “in any manner in which trust moneys may be invested by a trustee under the Trustee Act 1958 or any other Act.” The Trusts Corporation therefore inherits the statutory investment standards and limitations applicable to trustees under that Act, subject to the additional powers set out in ss. 14A-14C (for example, pooling into a Common Fund, advances from that Fund, and specified accounting allocations).

Transfer of Land Acts and title registration: The Act refers to land “under the operation of the Transfer of Land Act” in ss. 20(2) and 23, and instructs that transfers or registration in the Office of Titles be made accordingly (s. 10; s. 23). The document’s endnotes record later amendments to align with subsequent Transfer of Land legislation, including the Transfer of Land (Computer Register) Act 1989 and references to the Transfer of Land Act 1958 in the current text. Practitioners must ensure alignment of procedures with the operative Transfer of Land statute governing the relevant title, particularly regarding how moderator‑authenticated Register entries translate to registered proprietorship under the current Torrens system (s. 23).

Acts governing church structure: The definition of “Church” in s. 2 is to be read in light of later statutory instruments. The Explanatory Details (endnote 3) explain that as on and from 22 June 1977 the Principal Act is to be read subject to the Uniting Church in Australia Act 1977 and the Presbyterian Church of Australia Act 1971, such that references to the Presbyterian Church of Victoria are to be read as that body continuing to function under the described clause of the Presbyterian Church of Australia Act 1971. Those cross‑references affect how the Act operates post‑1977 and where property rights interact with denominational changes.

Property‑specific or prior enactments: The Act’s proviso in s. 18 prevents the General Assembly from making alterations to Model Trust Deeds that would be inconsistent with the provisions of the earlier Act of the twenty‑second year of Her present Majesty numbered LXXXII (the Act referenced in the Preamble). Practitioners must check historical and extant statutes concerning Crown reservations and grants to the Church (referred to in the definition of “property” at s. 2) to ensure any deed alteration remains consistent with earlier statutory constraints.

Banking and deposit law: The investment powers in s. 14A include deposit with “any bank or State savings bank carrying on business in the Commonwealth of Australia” (s. 14A(2)(b)). That cross‑references financial institution regulation and deposit insurance regimes; while the Act permits such deposits, regulatory obligations of banks and any statutory protections applicable to depositors will continue to apply.

Land grants and Crown reservations: The definition of “property” in s. 2 explicitly includes land promised or reserved by the Crown for church purposes and all real and personal property connected to church functions. Changes to Crown grants, reservation instruments, or land‑use planning laws will interact with the Act’s vesting mechanics, particularly where encumbrances or reservations affect vesting (s. 6).

Administrative law and public notification: The Act requires publication in the Government Gazette for certain actions (s. 5; s. 8; s. 25(2)). That aligns with administrative law principles governing notice and transparency. Agencies and officers acting under the Act must adhere to public notice requirements under other applicable administrative statutes.

Statutory amendment and later Acts: The endnotes set out amendment history relevant to the Act, most notably the Presbyterian Trusts (Common Fund) Act 1965 (No. 7310/1965) which inserted ss. 14A-14C, the Presbyterian Trusts Act 1979 (No. 9344/1979) which amended the definition of "Church" (endnote 3), and the Transfer of Land (Computer Register) Act 1989 (No. 18/1989) which updated references to the Transfer of Land Act and registration mechanisms. Practitioners must consult the operative consolidated text and any subsequent amendments to ensure compliance with current cross‑statutory obligations.

The Act as provided includes an endnotes section that records key legislative amendments. The original Presbyterian Trusts Act 1890 was assented to and commenced on 6 October 1890 (Endnotes 1). The consolidated version provided incorporates later amendments up to 23 April 2002.

Major recorded amendments:

Presbyterian Trusts (Common Fund) Act 1965 (No. 7310/1965). Assent 23 November 1965; this Act inserted ss. 14A-14C into the 1890 Act, creating the Common Fund regime (see footnotes in the statutory text noting insertion of defs and ss. 14A-14C). Those provisions establish the Trusts Corporation’s power to invest in a Common Fund, to account for trust‑specific credits, to allocate income through an Income Suspense Account and a Common Fund Reserve Account, and to make advances and withdrawals on set terms (ss. 14A-14C).
Presbyterian Trusts Act 1979 (No. 9344/1979). Assent 20 December 1979; commencement recorded as 22 June 1977 (s. 1(3) of that Act). That amendment altered the definition of "Church" (s. 2) to reflect post‑1977 denominational changes, and the explanatory details indicate how references to the Presbyterian Church of Victoria are to be read after 22 June 1977 vis‑à‑vis the Presbyterian Church of Australia Act 1971 and the Uniting Church in Australia Act 1977 (Endnotes 3).
Transfer of Land (Computer Register) Act 1989 (No. 18/1989), as amended by No. 11/2002. Assent 16 May 1989; commencement 3 February 1992. The 1989 Act and later modifications updated references and operations relating to the Transfer of Land Act (see ss. 20(2), 23 and the endnote referencing amendment by No. 18/1989 s. 13(Sch. 2 item 67) as amended by No. 11/2002 s. 3(Sch. 1 item 60).

The endnotes caution that certain amendments proposed by other Acts were never proclaimed or were later repealed (for example, section 5(1) of the Presbyterian Church of Australia Act 1971 was never proclaimed and was later repealed by the Statute Law Revision (Repeals) Act 1982). These historical notes matter when construing the Act against later denominational changes and prior expectations of statutory effect.

Practical consequence of amendment history: the substantive operational changes since 1890 are concentrated in the introduction of the Common Fund framework and in updating cross‑references to modern land registration and denominational statutes. Practitioners must consult the consolidated and current text (including amendments after 2002 where relevant) and the applicable Transfer of Land legislation in force in Victoria to ensure alignment between statutory vesting, registration procedures and the Torrens system.

The Act text and accompanying endnotes provided do not record any court decisions or case law construing the Presbyterian Trusts Act 1890. No litigation history or judicial interpretations are included in the statute text or schedules provided. The document expressly preserves the Supreme Court’s jurisdiction in the enforcement of trusts (s. 5), indicating that trust disputes involving property affected by the Act remain within equitable jurisdiction and would be adjudicated by the Supreme Court where litigated.

Implications for practitioners:

Absent statutory citations to decided cases in the provided text, practitioners must search Victorian Supreme Court and appellate decisions for any judicial construction of the Act, its Model Trust Deeds, the Common Fund provisions (ss. 14A-14C), and the operation of Moderator certificates and Register entries (ss. 21-24).
The preservation of equitable jurisdiction (s. 5) means that judges will apply ordinary trust and equity principles to disputes, and that the Act’s administrative mechanisms will be interpreted against that background.
Where the Register of Trustees or Moderator certificates are produced in proceedings, the Act makes them prima facie evidence (s. 24). The evidentiary effect and any rebuttable presumptions would be a subject for judicial testing; absent reported cases in the text, practitioners must rely on general evidentiary and trust law until statutory or appellate authority is located.

If litigation is contemplated or a contested title issue arises, the Act places the dispute squarely in the domain of equity and the Supreme Court. Practitioners should expect to cite the Act’s vesting provisions, the Model Trust Deeds where relevant, and the procedural provisions about Moderator certificates and registry entries as part of any evidentiary or relief application.

Statutory vesting subject to encumbrances: Section 6 provides for immediate vesting in the corporate trustees of property held “for or on behalf of the church generally” but expressly excepts property that is subject to a mortgage, charge or encumbrance until discharged or until the Trusts Corporation gives a written undertaking to answer the liability. The catch is the need for an express undertaking to assume mortgage liabilities to obtain automatic vesting, which can materially affect timing and obligations when loans or encumbrances exist (s. 6).

Moderator certificates and unilateral vesting: The Moderator can certify that there are no trustees and thereby effectvesting of property in the Trusts Corporation (s. 9). That power depends on the Moderator’s factual determination that the General Assembly is the sole and final judge of incapacity or vacancy. The mechanism can lead to rapid statutory change in title without prior judicial process; parties relying on trustee status should check the Register of Trustees and any Moderator certificates.

Exclusions of collegiate properties: Ormond College, Scotch College and the Presbyterian Ladies’ College are excluded from automatic vesting until the General Assembly resolves otherwise (s. 6; s. 18). Anyone dealing with those institutions must not assume corporate ownership even where other church property has vested.

Model Trust Deeds apply where no formal declaration exists: Section 18 makes property held without a formal declaration of trust be held on the Model Trust Deeds by operation of statute. This can materially change the governing trust terms for property given without explicit trusts, including altering powers of local trustees and beneficiaries’ expectations. The General Assembly may alter the Model Trust Deeds (s. 18), but only within statutory limits and not inconsistently with earlier Acts cited in the proviso.

Majority signatures and the Moderator’s consent: Section 20 permits transfers, mortgages, exchanges or leases to be executed by a majority of trustees for the time being, and those instruments are effective. However, s. 20(1) also requires the Moderator’s written consent for such dispositions; failure to obtain that consent may render transactions ineffective. Trustees or third parties should confirm the Moderator’s consent where required.

Common Fund accounting asymmetries: Under ss. 14A-14B, the Common Fund’s capital gains and losses are not reflected in individual trust credits; individual trusts are credited with the actual amounts invested on withdrawal. Income allocation is at rates the Trusts Corporation determines and may vary by source and nature of funds (s. 14B(2)). This creates potential mismatches between market return and trust account crediting that trustees and beneficiaries should understand: capital appreciation benefits the Common Fund Reserve Account, not individual trust accounts (s. 14A(8); s. 14B(5)).

Advance powers and charges on assets: The Trusts Corporation can make advances from the Common Fund for Church purposes and such advances bear interest fixed by the Trusts Corporation; advances are deemed investments and charged on Church assets (s. 14A(4)). That internal borrowing mechanism could create intra‑church liabilities that reduce the assets available to particular trusts if advances are not tracked and accountable.

Evidentiary presumptions and potential for later challenge: Moderator‑authenticated register entries and certificates are prima facie evidence (s. 24). Prima facie evidence is rebuttable; parties relying on those records should still consider the risk of later equitable challenge, particularly where procedural defects in appointment or registration may be alleged.

Rule‑making and delegation traps: The General Assembly may make rules for trustee appointment and other operational matters (s. 25), and certified rules must be deposited with the Registrar‑General and published (s. 25(2)). Parties should confirm that applicable rules were properly made, certified and published before relying on purported trustee appointments or governance arrangements.

Interaction with changing denominational law: The Act’s definition of “Church” was modified by later Acts (see endnotes and explanatory details). Property and trustee arrangements may be affected by denominational reorganisations and by statutes such as the Presbyterian Church of Australia Act 1971 and the Uniting Church in Australia Act 1977. Practitioners should verify which corporate entity constitutes the Church for the purpose of the Act (s. 2; endnote 3).

No express penalties: The Act contains few, if any, express offences or penalties. Enforcement is therefore remedial (equitable) or administrative; reliance on statutory transfer mechanisms may not insulate parties from subsequent equitable claims.

Pre‑implementation checklist for the General Assembly and Trusts Corporation:

Resolution and certification: Pass a General Assembly resolution constituting the Trusts Corporation and specifying the corporate name (s. 3). The Moderator should promptly cause a certified copy of the resolution to be delivered to the Registrar‑General (s. 4).
Gazette notice and registration: After the Registrar‑General registers the certified copy, the Registrar‑General will publish the incorporation in the Government Gazette (s. 5). Ensure the corporate name used matches title instruments.
Enrol Model Trust Deeds: Present the Model Trust Deeds to the Registrar‑General for enrolment as required by s. 17. Keep copies of the enrolled documents and any subsequent authorised variations.
Identify and list properties: Prepare a comprehensive schedule of properties held for the Church generally and of property held specifically for congregations or ministers, noting any mortgages, charges or encumbrances. Properties subject to encumbrances will not vest automatically until the encumbrance is discharged or the Trusts Corporation undertakes the liability in writing (s. 6).
Register of Trustees: Ensure the Moderator’s office establishes and maintains “The Presbyterian Register of Trustees” as per s. 21 and the Second Schedule. Record names, additions, dates of appointment, cause of vacancy and Moderator signatures, and maintain open inspection for interested parties (s. 21(7)).
Certificates and evidence: Use the First Schedule forms for certificates as to trustees (ss. 9, 21). Retain originals and provide copies where third parties require evidentiary proof; certificates and register entries are prima facie evidence (s. 24).
Trustee appointment and rules: Adopt rules under s. 25 governing appointment, removal, custody of the seal, and trustee replacement. Certify and deposit copies of rules with the Registrar‑General and ensure Gazette publication (s. 25(2)). Ensure the rules conform with any Model Trust Deed provisions and with the Trustee Act 1958 where investment powers are concerned (s. 14A(2)(a)).
Common Fund procedures: If using the Common Fund, adopt written procedures (and internal accounting) that comply with ss. 14A-14B. Keep separate ledger accounts for each trust’s credit in the Common Fund (s. 14A(3)), maintain an Income Suspense Account and Common Fund Reserve Account (s. 14B(1), (4)), and a documented policy for advances, withdrawals and interest rates (s. 14A(4)-(7); s. 14B(2)).
Mortgage and lending protocols: Where congregational trustees are to be nominated for mortgaging (s. 15), ensure a General Assembly resolution authorising the temporary conveyance, and document the limited purpose of the conveyance and re‑vesting mechanism on discharge.
Title office engagement: Coordinate with the Registrar‑General and the Registrar of Titles to effect statutory transfers where required (s. 10). For Torrens‑system titles, ensure procedures align with the operative Transfer of Land Act and that Moderator‑authenticated register entries will support registrations (s. 23).

Operational compliance for trustees and administrators:

Always check the Register of Trustees before relying on trustee status or conducting dispositions; ensure the Moderator’s signature authenticates entries (s. 21(5)).
Before executing a sale, mortgage or lease, obtain the Moderator’s written consent where the Act requires it (s. 20(1)). Confirm whether the transaction must be signed by a majority of trustees and, for land under the Transfer of Land Act, obtain necessary registration steps (s. 20(2)).
Ensure all trust investments comply with Trustee Act requirements where referenced (s. 14A(2)(a)) and that Common Fund allocations and interest rates are documented and implemented in accordance with ss. 14A-14B.
Maintain auditable records for all advances from the Common Fund and ensure interest and repayment terms are documented as these advances are treated as investments and as charges on Church assets (s. 14A(4)).
For donors and will drafters: use clear declarations and consider whether the donor intends property to be held under Model Trust Deeds; absence of formal declaration will cause statutory application of Model Trust Deeds (s. 18).

Risk management and governance:

Obtain legal advice where a property is subject to encumbrances before undertaking statutory vesting steps. If assuming mortgage liabilities to give effect to vesting (s. 6), record the written undertakings and ensure bank or mortgagee consent where necessary.
For contested trustee appointments, keep minute records and produce Moderator certificates as evidence; but be ready to litigate in the Supreme Court if necessary, since the Act preserves judicial jurisdiction (s. 5).
Regularly audit Common Fund accounting and reserve movements to ensure compliance with permitted uses of the Common Fund Reserve Account (s. 14B(6)).
Keep the Registrar‑General informed of rule changes and deposit certified copies as required (s. 25(2)).

Document checklist:

General Assembly resolution and certified copy (s. 3; s. 4)
Gazette notice of incorporation (s. 5)
Enrolled Model Trust Deeds (s. 17)
Register of Trustees entries and Moderator signatures (s. 21)
Moderator certificates (First Schedule)
Written undertakings to answer encumbrances (where applicable) (s. 6)
Common Fund policy, ledgers and Income Suspense/Reserve Account records (ss. 14A-14B)
Rules adopted under s. 25, certified and deposited with Registrar‑General

Following these steps will align practical administration with the statutory mechanics set out in the Act. Where statutory ambiguities intersect with modern land title practice or trust law, obtain current legal advice and check the consolidated and current legislative text and relevant case law.

Presbyterian Trusts Act 1890

Plain English Summary

Deep Dive

What it does

Current sections

Presbyterian Trusts Act 1890

Source text: opening excerpt

1 Presbyterian Trusts Act 1890

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply