82Definitions

82 Definitions In this Act (except as to Part IV), unless the context otherwise requires: The expression bank means an ADI that is permitted under the Banking Act 1959 of the Commonwealth to assume or use: (a) the word bank, banker or banking; or (b) any other word (whether or not in English) that is of like import to a word referred to in paragraph (a). The expression contingent right as applied to land, includes a contingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of the interest or possibility is or is not ascertained; also a right of entry, whether immediate or future, and whether vested or contingent. The expressions convey and conveyance applied to any person include the execution by that person of every necessary or suitable transfer or assurance for conveying, assigning, appointing, surrendering, or otherwise transferring or disposing of land to which he is entitled or of which he is seised or possessed, or wherein he is entitled to a contingent right, either for his whole estate or for any less estate, together with the performance of all formalities or acts required by law under the Land Title Act 2000 or otherwise for the validity or completion of the conveyance, including the acts to be performed by married women and tenants in tail for perfect conveyance and assurance under the Acts for the time being in force in that behalf. The expression devisee includes the heir of a devisee and the devisee of an heir, and any person who may claim right by devolution of title of a similar description. The expression disposition includes: (a) the conferring or exercising of a power of appointment or any other power or authority to dispose of property; and (b) an alienation of property. The expression instrument includes Act of Parliament. Proclamation in the Government Gazette 39 The expression land includes incorporeal as well as corporeal hereditaments, and any estate or interest therein, and also an undivided share of land. The expression lunatic means any person who shall have been found to be a lunatic upon inquiry by the Supreme Court, or upon a commission of inquiry issuing out of the Supreme Court in the nature of a writ of de lunatico inquirendo. The expressions mortgage and mortgagee include and relate to every estate and interest regarded in equity as merely a security for money, and every person deriving title under the original mortgagee. The expressions pay and payment" as applied in relation to stocks and securities, and in connection with the expression into Court, include the deposit or transfer of the same in or into Court. The expression person of unsound mind means any person, not an infant who, not having been found to be a lunatic, shall be incapable from infirmity of mind of managing his own affairs. The expression possessed applies to receipt of income of and to any vested estate less than a life estate, legal or equitable, in possession or in expectancy, in, any land. The expression property includes real and personal property, and any estate and interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest, whether in possession or not. The expression representative means an executor or administrator, and includes the Public Trustee, where he or she is administering the estate of a deceased person under section 35 of the Public Trustee Act 1979 in cases where the Supreme Court shall have authorized him to administer the estate of a deceased person. The expression securities includes stocks, funds, and shares. The expression stock includes fully paid up shares, and, so far as relates to vesting orders made by the Court under this Act, includes any fund, annuity, or security transferable in books kept by any company or society, or by instrument of transfer either alone or accompanied by other formalities, and any share or interest therein. The expression Supreme Court includes a Judge of the Supreme Court. Proclamation in the Government Gazette 40 The expression transfer in relation to stock, includes the performance and execution of every deed, power of attorney, act, and thing on the part of the transferor to effect and complete the title in the transferee. The expression trust does not include the duties incident to an estate conveyed by way of mortgage, or to the estate or interest of a mortgagee under the Land Title Act 2000, but with these exceptions the expressions trust and trustee include implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of representative of a deceased person: and the expression "trustee" includes a representative of a deceased person. valuer has the same meaning as in the Valuation of Land Act 1963. First Schedul Proclamation in the Government Gazette 41 Schedules First Schedule No. of Act Title Extent of Repeal No. 7 of 1855-6 The Trustee Act, 1855 Sections 2 to 47 inclusive No. 6 of 1860 The Property Act of 1860 Sections 24 to 30 inclusive No. 7 of 1862 An Act to give to Trustees, Mortgagees, and others, certain powers now commonly inserted in Settlements, Mortgages, and Wills Sections 1 to 9 inclusive, sections 23 to 31 inclusive No. 14 of 1866-7 The Limitations of Suits and Actions Act, 1866 No. 523 of 1891 The Trustees Appointment Act 1891 The whole Proclamation in the Government Gazette 42 South Australian Government Securities No. [Royal Arms] No. (Authorized by "The Trustee Act, 1893.") I, the Treasurer of the Province of South Australia, in consideration of the sum of dollars, paid to me for public purposes by do hereby bind myself to pay to the holder for the time being of this bond the sum of dollars and interest thereon at the rate of 4% per annum; such interest to be payable on 1 April and 1 October in every year, and the principal to be paid on the first day of , in the year one thousand nine hundred and . Sealed with my seal. Dated the day of one thousand eight hundred and . Signed, sealed, and delivered in ) the presence of ) [Bond transferable by delivery .] Proclamation in the Government Gazette 43 Appointment of New Trustees Pursuant to Part IV of "The Trustee Act, 1893," we [here set out names, addresses, and occupations], being persons entitled to exercise and exercising the power of appointing new trustees of the trust hereinafter referred to, do hereby appoint [here set out names, addresses and occupations of new trustees], to be new trustees (here if necessary insert jointly with) [here insert names, addresses, and occupations of the old continuing trustees] of the trust constituted under [here set out shortly particulars of the instrument creating the trust, including date, and name of person by whom trust was created], and we the said [here insert names of new trustees] do hereby accept the said trusteeship. Dated this day of , 18 . [To be signed by the persons exercising the power of appointment, and by the new trustees, and to be attested.] Proclamation in the Government Gazette 44 An Act to amend "The Trustee Act, 1893." 1 Short title and application (1) This Act may be cited as "The Trustee Act, 1907," and shall be incorporated with "The Trustee Act, 1893," and the 2 Acts may be cited together as "The Trustee Acts, 1893 and 1907." (2) This Act, except sections 2, 6, and 7, applies only to trusts created after the passing of this Act. Investments 2 Power to take mortgage for part purchase-money A trustee on the sale of trust property may leave unpaid purchase- money thereof invested upon the security of the property sold to the extent to which, were the trustee not the vendor thereof, such property would be a proper security for the investment of the trust funds. Various powers and liabilities 3 Trustee's power of delegation (1) A trustee who, for the time being, is or is about to be absent from South Australia may, if not expressly prohibited by the instrument creating the trust, with the consent of his co-trustee (if any), by power of attorney, under seal, delegate, for a term not exceeding 12 calendar months from the date of such power of attorney, to any person or persons residing in South Australia, all or any of the powers, authorities, and discretions vested in such trustee. (2) Every deed, act, matter, and thing executed, done, and performed by such attorney or attorneys shall be as valid and effectual as if executed, done, and performed by the trustee. (3) A trustee appointing any attorney or attorneys as aforesaid shall be liable for the acts and defaults of every such attorney as if they were his own acts and defaults. (4) Nothing in this section shall be deemed to limit or affect any power of appointing a new trustee in the place of a trustee absent from South Australia, or the power of the Supreme Court to make any order by reason of such absence. Proclamation in the Government Gazette 45 4 Revocation of power of attorney not effectual as against person in ignorance No revocation of any such power of attorney, including any revocation or avoidance by operation of law, shall be effectual as against any person dealing in good faith with such attorney in ignorance of such revocation. 5 Trustees bank account (1) Trustees, unless prohibited by the instrument creating the trust, and, if expressly authorized by the power of attorney so to do, their attorneys, appointed under section 3 of this Act, may, by writing signed by them, authorize any bank to honor cheques, bills, promissory notes, and drafts drawn upon or made payable out of the banking account of the trust by any one or more of such trustees or attorneys, and to honor the indorsement of any one or more of such trustees or attorneys upon any cheque, bill, promissory note, or draft payable to the order of the trustees, and also to pay to any one or more of such trustees or attorneys, whether before or after maturity, all or any portion of any moneys deposited on fixed deposit. (2) Every trustee who, in person or by attorney, gives or joins in giving any such authority shall be liable for the acts and defaults of every trustee or attorney acting thereunder as if they were his own acts and defaults. (3) No revocation of any such authority, including any revocation or avoidance by operation of law, shall be effectual as against any banker acting or paying money in good faith under or in pursuance of such authority in ignorance of such revocation. 6 Trustee may sell land with consent of Court With the consent of the Court, and notwithstanding anything contained in Act No. 10 of 1847, or any reservation or proviso contained in the land grants of land granted for ecclesiastical purposes to be held in conformity with the said Act, the trustees in whom the legal estate of such land shall be vested shall have power to sell the land. Powers of the Court 7 Power for Court to authorize purchase of trust property by trustee Where there is a trust for sale or power of sale the Supreme Court may, on the application, ex parte or otherwise, of a trustee, or of a Proclamation in the Government Gazette 46 beneficiary interested in the trust property, or of the Public Trustee, or a next friend on behalf of such a beneficiary not sui juris, upon being satisfied that such sale will be advantageous to the beneficiaries, authorize a sale of trust property by a trustee to himself, unless such sale be expressly prohibited by the instrument 8 Accounts to be filed by trustees when required Every executor and trustee shall, if so required by and at the cost of any beneficiary requiring the same, file annually in the Supreme Court an account of his administration of the testator's estate; and the Public Trustee shall, on the request of a majority or of half of the beneficiaries and at their cost, audit the accounts so filed. Proclamation in the Government Gazette 47 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION PART I – ACTS OF THE STATE OF SOUTH AUSTRALIA The Trustee Act, 1893 (Act No. 586, 1893) Assent date 23 December 1893 Commenced 14 February 1894 The Trustee Act, 1907 (Act No. 944, 1907) Assent date 21 December 1907 Commenced 21 December 1907 PART II – ORDINANCES AND ACTS OF THE NORTHERN TERRITORY Trustee Ordinance 1969 (Act No. 56, 1969) Assent date 10 December 1969 Commenced 10 December 1969 Trustee Ordinance 1972 (Act No. 41, 1972) Assent date 31 July 1972 Commenced 31 July 1972 Trustee Ordinance (No. 2) 1972 (Act No. 69, 1972) Assent date 5 December 1972 Commenced 5 December 1972 Proclamation in the Government Gazette 48 Ordinances Revision Ordinance 1973 (Act No. 87, 1973) Assent date 11 December 1973 Commenced 11 December 1973 (s 12(2)) Amending Legislation Ordinances Revision Ordinance 1974 (Act No. 34, 1974) Assent date 26 August 1974 Commenced 11 December 1973 (s 3(2)) Ordinances Revision Ordinance (No. 2) 1974 (Act No. 69, 1974) Assent date 24 October 1974 Commenced 11 December 1973 (s 3) Ordinances Revision Ordinance 1976 (Act No. 27, 1976) Assent date 28 June 1976 Commenced ss 1, 2 and 6: 28 June 1976 (s 6(2)); ss 3 and 4: 11 December 1973; s 5: 24 October 1974 Trustee Ordinance 1976 (Act No. 58, 1976) Assent date 12 November 1976 Commenced 25 February 1977 (Gaz No. 8A, 25 February 1977, p 327) Transfer of Powers (Further Provisions) Ordinance 1977 (Act No. 51, 1977) Assent date 9 December 1977 Commenced 1 January 1978 (s 2) Transfer of Powers (Self-Government) Ordinance 1978 (Act No. 54, 1978) Assent date 1 July 1978 Commenced 1 July 1978 (s 8) Statute Law Revision Act (No. 2) 1978 (Act No. 19, 1979) Assent date 2 February 1979 Commenced 2 February 1979 Trustee Act 1979 (Act No. 99, 1979) Assent date 10 August 1979 Commenced 10 August 1979 Trustee Amendment Act 1981 (Act No. 57, 1981) Assent date 14 July 1981 Commenced s 5(a): 1 January 1981; rem: 28 August 1981 (Gaz G34, 28 August 1981, p 9) Companies and Securities (Consequential Amendments) Act 1986 (Act No. 18, 1986) Assent date 30 June 1986 Commenced 1 July 1986 (s 2) Trustee Amendment Act 1988 (Act No. 59, 1988) Assent date 15 December 1988 Commenced 1 January 1989 (Gaz S79, 30 December 1988) Married Persons (Equality of Status) Act 1989 (Act No. 76, 1989) Assent date 12 December 1989 Commenced 12 December 1989 Proclamation in the Government Gazette 49 Corporations (Consequential Amendments) Act 1990 (Act No. 59, 1990) Assent date 14 December 1990 Commenced 1 January 1991 (s 2, s 2 Corporations (NT) Act 1990 (Act No. 56, 1990) and Gaz S76, 21 December 1990) Real Property (Consequential Amendments) Act 1991 (Act No. 33, 1991) Assent date 25 June 1991 Commenced 1 October 1991 (Gaz S49, 1 October 1991) Trustee Amendment Act 1991 (Act No. 69, 1991) Assent date 4 December 1991 Commenced 16 December 1991 (Gaz S63, 16 December 1991) Financial Institutions (NT) (Consequential Amendments) Act 1992 (Act No. 23, 1992) Assent date 2 June 1992 Commenced 1 July 1992 (s 2, s 2 Financial Institutions (NT) Act 1992 (Act No. 22, 1992) and Gaz S35, 30 June 1992) Pastoral Land (Consequential Amendments) Act 1992 (Act No. 39, 1992) Assent date 25 June 1992 Commenced 26 June 1992 (s 2, s 2 Pastoral Land Act 1992 (Act No. 17, 1992) and Gaz S33, 26 June 1992) Trustee Amendment Act 1992 (Act No. 72, 1992) Assent date 14 December 1992 Commenced 14 December 1992 Trustee Amendment Act 1994 (Act No. 9, 1994) Assent date 16 March 1994 Commenced 16 March 1994 Trustee Amendment Act (No. 2) 1994 (Act No. 36, 1994) Assent date 18 May 1994 Commenced 1 August 1994 (s 2, s 2 Perpetuities Act 1994 (Act No. 31, 1994) and Gaz G29, 20 July 1994, p 3)) Amending Legislation Statute Law Revision Act 1994 (Act No. 50, 1994) Assent date 20 September 1994 Commenced 20 September 1994 Statute Law Revision Act 1994 (Act No. 50, 1994) Assent date 20 September 1994 Commenced 20 September 1994 Trustee Amendment Act 1995 (Act No. 13, 1995) Assent date 26 June 1995 Commenced 26 June 1995 Trustee Amendment Act (No. 2) 1995 (Act No. 60, 1995) Assent date 28 December 1995 Commenced 26 February 1996 (Gaz G7, 14 February 1996, p 2) Proclamation in the Government Gazette 50 Sentencing (Consequential Amendments) Act 1996 (Act No. 17, 1996) Assent date 19 April 1996 Commenced 1 July 1996 (s 2, s 2 Sentencing Act 1995 (Act No. 39, 1995) and Gaz S15, 13 June 1996) Statute Law Revision Act (No. 2) 1998 (Act No. 92, 1998) Assent date 11 December 1998 Commenced ss 7 and 11: 13 January 1999; ss 6 and 15: 10 March 1999; s 3: 1 April 1999; s 25: 20 September 1999; rem: 11 December 1998 (s 2, Gaz G1, 13 January 1999, p 6, Gaz G9, 10 March 1999, p 2 and Gaz S15, 1 April 1999) Land Title (Consequential Amendments) Act 2000 (Act No. 45, 2000) Assent date 12 September 2000 Commenced 1 December 2000 (s 2, s 2 Land Title Act 2000 (Act No. 2, 2000) and Gaz G38, 27 September 2000, p 2) Law of Property (Consequential Amendments) Act 2000 (Act No. 46, 2000) Assent date 12 September 2000 Commenced 1 December 2000 (s 2, s 2 Law of Property Act 2000 (Act No. 1, 2000) and Gaz G38, 27 September 2000, p 2) Statute Law Revision (Financial Provisions) Act 2002 (Act No. 38, 2002) Assent date 13 September 2002 Commenced 30 October 2002 (Gaz G43, 30 October 2002, p 3) Legal Profession (Consequential Amendments) Act 2007 (Act No. 7, 2007) Assent date 17 May 2007 Commenced s 10: 1 July 2007 (Gaz G26, 27 June 2007, p 3); rem: 17 May 2007 Local Court (Related Amendments) Act 2016 (Act No. 8, 2016) Assent date 6 April 2016 Commenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016) Supreme Court Amendment (Associate Judges) Act 2017 (Act No. 18, 2017) Assent date 5 September 2017 Commenced 22 November 2017 (Gaz S84, 21 November 2017, p 1) 3 SAVINGS AND TRANSITIONAL PROVISIONS s 10 Trustee Ordinance 1969 (Act No. 56, 1969) s 6 Trustee Ordinance 1972 (Act No. 41, 1972) s 8 Trustee Ordinance 1976 (Act No. 58, 1976) s 4 Trustee Amendment Act 1981 (Act No. 57, 1981) 4 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Ordinances Revision Ordinance 1973 (Act No. 87, 1973) (as amended) to the following provisions: ss 4, 11, 12, 14, 21, 22, 23, 24, 28, 31, 37, 59, 61, 78, 82 and Second Sch. Proclamation in the Government Gazette 51 5 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1, 13, 50AA, 50A, 54, 59, 60, 63, 68, 81 and 82. 6 LIST OF AMENDMENTS s 3A ins No. 99, 1979, s 3 rep No. 60, 1995, s 4 pt I hdg sub No. 60, 1995, s 5 s 4 rep No. 41, 1972, s 2 ins No. 41, 1972, s 3 amd No. 69, 1972, s 3; No. 87, 1973, s 12; No. 58, 1976, s 4; No. 54, 1978, s 5; No. 19, 1979, s 29; No. 99, 1979, s 4; No. 57, 1981, s 5; No. 18, 1986, s 3; No. 59, 1988, s 4; No. 59, 1990, s 4; No. 69, 1991, s 4; No. 23, 1992, s 4; No. 39, 1992, s 3; No. 72, 1992, s 2; No. 9, 1994, s 2; No. 13, 1995, s 2 s 4A ins No. 41, 1972, s 3 amd No. 87, 1973, s 12; No. 58, 1976, s 5 s 4B ins No. 58, 1976, s 6 amd No. 54, 1978, s 5; No. 23, 1992, s 4; No. 9, 1994, s 3 s 4C ins No. 57, 1981, s 6 amd No. 59, 1988, s 6 s 5 sub No. 60, 1995, s 5 ss 6 – 8 rep No. 41, 1972, s 4 ins No. 58, 1976, s 7 s 9 amd No. 99, 1979, s 5 s 10 sub No. 60, 1995, s 5 ss 10A – 10B ins No. 60, 1995, s 5 s 10C ins No. 60, 1995, s 5 amd No. 92, 1998, s 24 ss 10D – 10G ins No. 60, 1995, s 5 s 11 amd No. 72, 1992, s 8 s 13 amd No. 45, 2000, s 9 s 16 rep No. 16, 1989, s 7 s 17 amd No. 38, 2002, s 6; No. 7, 2007, s 16 s 18 amd No. 59, 1988, s 7; No. 46, 2000, s 11 s 18A ins No. 46, 2000, s 11 s 21 amd No. 56, 1969, s 3 s 21A ins No. 36, 1994, s 4 s 22 amd No. 56, 1969, s 4; No. 18, 2017, s 36 s 24A ins No. 57, 1981, s 7 s 27 amd No. 17, 1996, s 6; No. 8, 2016, s 45 ss 45 – 46 rep No. 50, 1994, s 16 s 48 amd No. 72, 1992, s 8 s 49 amd No. 46, 2000, s 11 s 49A ins No. 57, 1981, s 8 s 50AA ins No. 36, 1994, s 5 amd No. 46, 2000, s 11 s 50B ins No. 36, 1994, s 5 Proclamation in the Government Gazette 52 s 50A ins No. 59, 1988, s 8 amd No. 46, 2000, s 11 ss 53 – 54 amd No. 45, 2000, s 9 s 55 amd No. 72, 1992, s 8 s 56 amd No. 72, 1992, s 3 s 57 amd No. 33, 1991, s 7; No. 72, 1992, s 4 s 58 amd No. 33, 1991, s 7 rep No. 72, 1992, s 5 s 59 amd No. 45, 2000, s 9 s 60 sub No. 72, 1992, s 6 amd No. 45, 2000, s 9 ss 61 – 62 rep No. 72, 1992, s 6 s 63 amd No. 45, 2000, s 9 s 65 rep No. 50, 1994, s 16 s 68 amd No. 46, 2000, s 11 s 69 rep No. 76, 1989, s 7 ins No. 46, 2000, s 11 s 70 rep No. 56, 1969, s 5 s 71 rep No. 50, 1994, s 16 s 72 rep No. 56, 1969, s 5 s 73 amd No. 56, 1969, s 6; No. 51, 1977, s 3; No. 54, 1978, s 5; No. 19, 1979, s 29 s 74 rep No. 56, 1969, s 7 s 76 amd No. 33, 1991, s 7 rep No. 45, 2000, s 9 s 77 rep No. 50, 1994, s 16 s 78 sub No. 56, 1969, s 8 amd No. 41, 1972, s 5 s 79 rep No. 50, 1994, s 16 s 81 amd No. 45, 2000, s 9 s 82 amd No. 56, 1969, s 9; No. 57, 1981, s 9; No. 36, 1994, s 6; No. 92, 1998, s 24; No. 45, 2000, s 9; No. 38, 2002, s 6 sch 2 rep No. 92, 1998, s 24 sch 4 – 5 rep No. 72, 1992, s 7