Trustee Companies Regulations 1988

The regulations revolve around a few recurring legal and administrative concepts. Each concept is expressed in specific provisions; quoting or paraphrasing those provisions helps locate the obligations.

• Scale of charges and disclosure. Regulation 3 mandates publication and distribution of a trustee company’s “scale of charges” as required by the Act. The regulation specifies who must receive a free copy (any person approaching the trustee company for the purpose of making a will naming the trustee company as executor (r 3(1)(a)), and any person requesting a copy (r 3(1)(b))). It requires availability at public offices (r 3(2)) and prescribes additional statements that must appear in the scale (r 3(3)(a)-(b)), namely that the trustee company is entitled to reimbursement of all properly made disbursements and that fees may apply where an estate participates in an Estate Common Trust Fund.
• Public notice and timing. A trustee company proposing to alter its scale of charges must publish a notice in the public notices section of a daily newspaper circulated throughout the State giving specified particulars and stating that copies of the proposed scale are available at any office (r 3(4)(a)-(c)). The notice must be published at least 14 days before the alteration takes effect (r 3(5)). The regulation also prescribes a minimum print size for the published scale and any notice (r 3(6)).
• Monetary thresholds and fees. Regulation 4 prescribes $50,000 “for the purposes of section 10 of the Act.” Regulation 8 fixes the lodgement fee for statements required by section 33(1)(a) or (b) at $1,100. Those figures are statutory instruments for the Act’s mechanics; the regulations set them explicitly.
• Forms and accounting schedules. Regulation 5 prescribes that statements under s 33(1)(a) or (b) must be made in Form 1 and accompanied by a balance sheet and profit and loss account as set out in Form 2 in the Schedule. Regulation 6 directs completion in accordance with directions on the form. Regulation 7 moderates the requirement for strict stylistic compliance (r 7(1)) but insists on strict compliance with the substance and required information unless the Commissioner approves otherwise (r 7(2)). The Schedule supplies the detailed items to be disclosed in Forms 1 and 2, including balance sheet line items, contingent liability schedules, related party definitions, and instructions for annexing statements.
• Interaction with the Corporations Act and ASIC certificates. Part 3 (regs 9-13) is framed expressly to facilitate voluntary transfers under Corporations Act Part 5D.6 (r 9). Regulation 10 gives statutory effect in Western Australia to an ASIC voluntary transfer determination and certificate of transfer under the Corporations Act (r 10(1)-(4)). It specifies that, when the certificate comes into force, the receiving company is “taken to be the successor in law” of the transferring company to the extent of the transfer, and that assets and liabilities pass without any transfer, conveyance or assignment (r 10(2)-(3)(a)). Regulation 11 authorises ASIC officers to issue certificates identifying specific assets or liabilities that have become assets or liabilities of the receiving company and makes such certificates evidence of the matters certified (r 11(1)-(3)). Regulation 12 obliges registrars and other recording authorities to register or record the transfer on application accompanied by the certificate (r 12). Regulation 13 exempts such transfers from State tax.
• Delegation and administrative discretion. The regulations reference the Commissioner’s discretion to require strict compliance with the style of forms (r 7(1)) and to approve departures from strict substantive compliance (r 7(2)). Regulation 11(3) expressly empowers ASIC to authorise, in writing, members or staff to issue certificates. These provisions allocate decision-making and procedural discretion between state regulatory officers and ASIC.

These concepts convert statutory directives in the Trustee Companies Act and operational decisions under the Corporations Act into granular obligations: what must be published, what must be included in particular returns, what fee attaches to lodgement, and how an ASIC voluntary transfer determination interacts with Western Australian registration and tax systems.

The regulations create obligations and confer processes that affect a small, target set of parties. The statute lists both private entities and public authorities that are directly implicated.

• Trustee companies. The primary addressee is any “trustee company” required under the Act to publish a scale of charges or make statutory returns under s 33. Regulation 3 imposes a direct operational disclosure duty on trustee companies to publish scales of charges, make them freely available to specified persons, include specified statements (r 3(1)-(3)), and to publish notice when proposing changes (r 3(4)-(5)). Trustee companies must also complete and lodge Form 1 and Form 2 for s 33 statements (r 5), pay the lodgement fee (r 8), and comply with completion and substance requirements (r 6-7).
• Individuals approaching a trustee company to make a will naming the company as executor. Regulation 3(1)(a) entitles any such person to a free copy of the trustee company’s current scale of charges. This creates a consumer-facing disclosure channel targeted at people considering appointment of a trustee company as executor.
• Any person requesting a copy of a trustee company’s scale of charges. Regulation 3(1)(b) requires trustee companies to supply copies on request, free of charge.
• Offices open to the public. Regulation 3(2) obliges trustee companies to ensure copies of the current (and, where relevant, proposed) scale are available at any office which is open to the public. This affects where trustee companies must stock printed materials and thus influences branch operations.
• The Commissioner (state). Regulation 7 gives the Commissioner authority to require strict compliance with the style of Schedule forms (r 7(1)) and to approve departures from strict substantive compliance (r 7(2)). The Commissioner therefore has oversight and administrative discretion over the form-based reporting regime.
• ASIC and authorised ASIC officers. Part 3 applies when ASIC makes a voluntary transfer determination and issues a certificate of transfer under the Corporations Act (r 10(1)). ASIC authorised officers are empowered to issue certificates under r 11 and those certificates carry evidentiary weight (r 11(2)). ASIC is central to effectuating the transfer mechanism described.
• Transferring and receiving companies under the Corporations Act transfer regime. Regulation 10 expressly applies when either or both the transferring or receiving company are registered in Western Australia (r 10(1)(c)). When ASIC’s certificate comes into force, the receiving company “is taken to be the successor in law” to the extent of the transfer (r 10(2)). Thus corporate parties that are trustee companies or hold estate assets and liabilities are affected.
• Registrars and recording authorities. The Registrar of Titles, the Registrar of Deeds and Transfers and any person or authority required or authorised under State law to register or record transactions affecting assets or liabilities must, on application accompanied by an ASIC certificate, register or record the transfer in an appropriate manner (r 12). State registration authorities are required to accept ASIC certificates as the basis for registration.
• State revenue/tax authorities and State government finances. Regulation 13 declares that State tax is not payable in respect of a transfer of estate assets or liabilities facilitated under Part 3. That affects the State Revenue Office and the State’s tax base for these transactions.

Indirectly affected parties include beneficiaries of estates (because changes to administration costs or the identity of the legal owner may affect administration), counterparties whose security interests may need re‑registration or recognition, and publishers/newspapers where trustee companies place notices under r 3(4).

In sum, the regulations structure obligations for trustee companies and make administrative arrangements that bind ASIC and State recording authorities when Corporations Act voluntary transfers intersect with Western Australian-registered companies and estate assets.

This section extracts the principal duties imposed and rights recognised by the regulations, with statutory references.

Duties on trustee companies

• Publication and provision of the scale of charges. Trustee companies must publish their scale of charges and make it available free of charge to (a) any person approaching the company for the purpose of making a will which names the trustee company as executor, and (b) any person requesting a copy (r 3(1)(a)-(b)). They must ensure copies of the current scale (and proposed scale where a notice has been published) are available free of charge at any office of the trustee company which is open to the public (r 3(2)).
• Content of scales. In addition to the statutory statement required by s 18(9) of the Act, the published scale must include a statement that the trustee company is entitled to reimbursement of all properly made disbursements in the administration or management of an estate, and that fees or commission in the scale may apply where an estate participates in an Estate Common Trust Fund (r 3(3)(a)-(b)).
• Public notice on proposed changes. Prior to altering a scale of charges, a trustee company must publish a notice in the public notices section of a daily newspaper circulated throughout the State giving specified details, including the effective date and details of the proposed alteration, and stating that copies of the proposed scale are available on request at any office (r 3(4)(a)-(c)). The notice must be published at least 14 days before the alteration takes effect (r 3(5)).
• Presentation standard. Published scales and notices must be printed in at least 5 point Roman type face (r 3(6)).

Duties relating to reporting and forms

• Form of s 33 statements. A statement lodged under s 33(1)(a) or (b) of the Act must be made in accordance with Form 1 and accompanied by the balance sheet and profit and loss account in Form 2 (r 5).
• Completion and directions. Forms must be completed in accordance with directions and instructions specified in or relating to the form (r 6).
• Compliance standard and Commissioner discretion. Strict compliance with the style of a Schedule form is not necessary unless the Commissioner so requires (r 7(1)). However, strict compliance with the substance and provision of required information is necessary unless the Commissioner otherwise approves (r 7(2)). This sets a substantive obligation while allowing the Commissioner administrative flexibility.
• Fee. The fee for lodging a s 33(1)(a) or (b) statement is $1,100 (r 8).

Duties and effects under voluntary transfers (Part 3)

• Application condition. The regulatory transfer mechanism applies when ASIC makes a voluntary transfer determination under Corporations Act s 601WBA, issues a certificate under s 601WBG, and where either or both transferring or receiving company are registered in WA (r 10(1)(a)-(c)).
• Successorship and transfer without conveyance. When ASIC’s certificate of transfer comes into force, the receiving company is taken to be the successor in law of the transferring company to the extent of the transfer (r 10(2)). All estate assets and liabilities of the transferring company become assets and liabilities of the receiving company without any transfer, conveyance or assignment (r 10(3)(a)). Duties, obligations, immunities, rights and privileges applying to the transferring company apply to the receiving company to the extent of the transfer (r 10(3)(b)).
• Certificates by ASIC officers and evidentiary effect. An authorised ASIC officer may certify in writing that a specific asset or liability has become an asset or liability of the receiving company under this Part (r 11(1)). Such a certificate is “evidence of the matters certified” for all purposes and in all proceedings (r 11(2)). ASIC can authorise persons to issue such certificates (r 11(3)).
• Registration and recordation. Registrars of Titles, Deeds and Transfers and other State registration/recording authorities are required, on application accompanied by an ASIC certificate under r 11, to register or record the transfer “in an appropriate manner” (r 12).
• Tax exemption. State tax is not payable in respect of a transfer of estate assets or liabilities facilitated under this Part (r 13).

Rights and recognitions

• Right of access to scale information. Persons approaching to make a will naming a trustee company as executor, and anyone requesting a copy, have a right to receive the published scale free of charge (r 3(1)).
• Evidentiary value of ASIC certificates. Certificates under r 11 are admissible evidence of the matters certified (r 11(2)). That confers a procedural right for parties relying on transfer certificates to obtain registration and to assert successor status under r 10.
• Registration and recording upon application. Applicants who present an ASIC certificate to the relevant State registrar have a right to have the transfer registered or recorded in an appropriate manner (r 12).
• State tax exemption. Parties effecting transfers under Part 3 benefit from a statutory exemption from State tax for those transfers (r 13).

What the regulations do not do (noted because absence is meaningful)

• The regulations do not themselves create or alter fiduciary duties or investment rules under the Act; they specify forms and publication rules and give effect to Corporations Act transfer processes in Western Australia.
• The regulations do not specify penalties for non‑compliance within their text; they leave enforcement to the mechanisms in the Act and to administrative decision-makers such as the Commissioner and registrars.

These duties redistribute administrative burdens (publication, paperwork, lodgement fees) and shape the evidentiary and registration pathway for voluntary transfers effected through ASIC under the Corporations Act.

The Trustee Companies Regulations 1988 as presented do not set out express fines or criminal penalties within their text. The regulations instead establish administrative obligations and procedural mechanisms; enforcement consequences must therefore be inferred from the regulatory architecture and the Act’s supervisory framework rather than the regulations’ own penalty clauses.

What the regulations provide for enforcement and evidentiary effect

• Evidentiary force of ASIC certificates. Regulation 11(2) provides that a certificate purporting to be issued under r 11(1) “is evidence of the matters certified.” That provision makes an ASIC certificate admissible proof in proceedings and before registrars for the matters it covers. The regulations do not define whether the certificate is conclusive or merely prima facie evidence; the text is that it “is evidence,” which has the legal effect of establishing admissible proof of the matters certified, subject to the ordinary rules of evidence and any statutory qualifications elsewhere.
• Administrative obligations with compliance levers. Regulation 7 gives the Commissioner an explicit role in supervising compliance with reporting forms: the Commissioner can require strict compliance with form style (r 7(1)) and can approve non‑strict compliance with substance (r 7(2)). These provisions provide the Commissioner with administrative levers: the Commissioner may refuse to accept a non‑compliant form or require amendment, and can enforce the substance requirements by withholding approvals. The regulations do not spell out sanctioning powers but presuppose the Commissioner’s wider statutory powers under the Trustee Companies Act to enforce compliance; those wider powers are not restated here.
• Registration duty imposed on public registrars. Regulation 12 obliges registrars and recording authorities to register or record transfers upon application accompanied by an ASIC certificate. This requirement is binding on registrars; refusal would need to be justified against the regulation. The regulation does not specify a dispute or review mechanism for an applicant facing refusal; ordinary administrative law remedies would be the likely route (judicial review or statutory appeal), but the regulations do not create new appeal paths.
• Publication and disclosure obligations. Regulation 3 imposes specific publication duties on trustee companies and prescribes minimum timing (14 days’ notice for proposed fee changes) and minimum print size. The obligation to publish and make copies available free of charge is a compliance requirement. The regulation does not itself set monetary penalties for non‑compliance; again enforcement would reside with the Act’s supervisory framework or civil remedies available to affected parties.

What is not in the regulations

• No express monetary penalties, fines or criminal offences are created in the text of these regulations. They do not specify enforcement sanctions such as infringement notices, suspension powers, or administrative fines. Any civil or criminal consequences for breach must therefore be sought in the Trustee Companies Act or elsewhere; the regulations themselves do not elaborate them.
• No dispute resolution procedures are set for disagreements about the content of ASIC certificates, the scope of transfers, or registrar refusals to register. The regulations state evidentiary status for certificates and require registrars to register on application with a certificate, but do not contain mechanisms for judicial clearance of contested certificates.

Practical enforcement risks and administrative levers

• The Commissioner’s approval/disapproval in r 7 gives the Commissioner practical control over acceptability of returns. Refusal to accept s 33 statements on form grounds may trigger statutory consequences under the Act (for example, removal of authorisation or directions), but those consequences are within the Act, not the regulations.
• The operation of Part 3 shifts some practical control of asset transfers to ASIC. Because r 11 certificates are evidence, parties relying on transfer certificates will be able to present a formal documentary basis for registration and for asserting successor status. That evidentiary position may reduce friction in registration but could also generate litigation if the certificate’s scope is disputed; the regulations do not create a special-purpose challenge process.
• The State tax exemption in r 13 is self-executing: it states “State tax is not payable in respect of a transfer … facilitated under this Part.” The revenue consequence is direct; the enforcement implication is that revenue authorities cannot demand State tax on those transfers, but the regulation does not prescribe how disputes about entitlement to the exemption should be resolved.

In short, the regulations mostly create procedural duties and evidentiary mechanisms rather than direct penalty regimes. Enforcement will therefore deploy the Act’s supervisory powers, registrars’ administrative processes and ordinary administrative or civil remedies where disputes arise.

The regulations explicitly interact with both the Trustee Companies Act 1987 (the Act) and the Corporations Act 2001 (Cwlth), and indirectly with State recording statutes and State tax law. The regulations operationalise certain cross‑jurisdictional interfaces; the text identifies the specific statutory linkages.

Interaction with the Trustee Companies Act 1987

• The regulations implement and specify aspects of the Act. For example, regulation 3 implements the Act’s requirement to publish a scale of charges by detailing who must be given copies, the additional statements required to complement s 18(9) of the Act, and the process for altering scales. Regulation 5 implements s 33 by prescribing Forms 1 and 2 for statements lodged under s 33(1)(a) or (b). Regulation 4 prescribes an amount “for the purposes of section 10 of the Act.” Regulations 6 and 7 govern completion and compliance with forms required by the Act.
• The Commissioner referred to in regulation 7 is an office established by the Act; the regulations delegate certain administrative aspects of compliance to the Commissioner’s discretion. The regulations do not replace or expand fiduciary or prudential duties under the Act, but they require reporting and disclosure consistent with those statutory duties.

Interaction with the Corporations Act 2001 (Cwlth)

• Part 3 explicitly connects to the Corporations Act: regulation 9 states the purpose “to facilitate voluntary transfers of estate assets and liabilities under the Corporations Act Part 5D.6.” Regulation 10 applies when ASIC makes a voluntary transfer determination under Corporations Act s 601WBA and issues a certificate under s 601WBG. Regulation 10(4) also refers to the kinds of provisions that may be included in a certificate under Corporations Act s 601WBG(3).
• The regulations therefore implement a State-level recognition and administrative pathway for a Commonwealth statutory mechanism. When ASIC effects a voluntary transfer under the Corporations Act, the State regulations make the receiving company the successor in law in Western Australia (r 10(2)-(3)) and prescribe how State registries must record the transfer (r 12). This aligns State registration rules with Commonwealth corporate restructuring mechanisms.

Interaction with State registration laws

• Regulation 12 compels the Registrar of Titles, the Registrar of Deeds and Transfers, and any other State person or authority “required or authorised under a law of the State to register or record transactions affecting assets or liabilities” to register or record transfers when presented with an ASIC certificate. This imposes an obligation on bodies that operate under separate State statutes (for land titles, deeds, registrations) to accept ASIC certificates as the basis for recording the change of legal incidence of estate assets and liabilities.
• The phrase “in an appropriate manner” in r 12 leaves the method of registration to the registrars’ rules and the relevant State statutes, but it requires registrars to act on the presented certificate.

Interaction with State tax law

• Regulation 13 declares that State tax is not payable in respect of transfers facilitated under Part 3. That is a direct statutory exemption that intersects with State revenue laws. It reduces friction for transfers effected under the Corporations Act by removing a State tax liability that otherwise could arise on transfer of estate assets or liabilities.

Practical implications of the cross‑statutory interactions

• Commonwealth-State interplay: Part 3 is an example of a State regulation providing domestic legal recognition and administrative steps for a Commonwealth corporate mechanism. ASIC’s determination under Commonwealth law triggers State consequences , successor status, registrars’ obligations and tax exemption , under these regulations. The mechanism relies on documentary co‑operation: an ASIC certificate.
• Registration mechanics remain State-governed: although the transferring mechanism is federal, r 12 requires applicants to present the certificate and to proceed under State registration systems. Registrars’ statutory procedures and fees (if any) under their enabling statutes remain applicable, subject to the obligation to register on presentation of the certificate.
• Evidence rules and litigation: r 11(2) gives ASIC certificates evidentiary weight in State proceedings, which aligns evidentiary and procedural paths across jurisdictions. However, the regulations do not absorb or override State statutory definitions and modes of property transfer where those statutes require specific instruments for recordation; r 12 requires registrars to register “in an appropriate manner,” which implies adaptation to the registrars’ statutory processes.
• Non‑duplication of tax: r 13 removes State tax friction, which harmonises costs across Commonwealth‑effected transfers and aims to remove double taxation or State-level impediments to voluntary transfers effected under the Corporations Act.

In short, the regulations bridge the Trustee Companies Act’s State regulatory framework to Commonwealth corporate insolvency/transfer mechanisms and to State registration and tax systems, creating a specific, document-driven path for recognition and registration of voluntary transfers of estate assets and liabilities.

The regulations include a compilation table in the Notes. The historical record of amendments and reprints is explicit in the source and shows how the regulations have been updated since 1988.

Key entries in the compilation table

• Trustee Companies Regulations 1988 (Gazette 26 Aug 1988 p. 3284-9). Commencement: 1 Sep 1988 (see r 2 and Gazette 26 Aug 1988 p. 3284). This is the original instrument.
• Trustee Companies Amendment Regulations 1991 (Gazette 8 Nov 1991 p. 5717). Commencement: 8 Nov 1991. The source indicates r 8 was amended (see annotation next to r 8).
• Trustee Companies Amendment Regulations 1993 (Gazette 31 Aug 1993 p. 4686). Commencement: 1 Sep 1993 (see r 2).
• Corporations (Consequential Amendments) (FSR) Regulations 2003 Pt. 5 (Gazette 6 Jun 2003 p. 2023-6). Commencement: 11 Mar 2002 (see r 2 and Commonwealth Gazette 24 Oct 2001 No. GN42). This amendment package appears to align State forms and procedures with broader financial services reforms and the Corporations Act changes.
• Equality of Status Subsidiary Legislation Amendment Regulations 2003 Pt. 40 (Gazette 30 Jun 2003 p. 2581-638). Commencement: 1 Jul 2003 (see r 2 and Gazette 30 Jun 2003 p. 2579). This entry indicates editorial or technical amendments.
• Reprint 1: Trustee Companies Regulations 1988 as at 24 Oct 2003 (includes the amendments listed above).
• Trustee Companies Amendment Regulations 2012 (Gazette 4 Jan 2013 p. 6-8). Commencement: r 1 and r 2: 4 Jan 2013; regulations other than r 1 and r 2: 5 Jan 2013 (see r 2(a) and (b)). The 2012 amendment inserted the Part 3 provisions (r 9 onwards) and updated headings; the marginal note in the text indicates the heading insertion and the Gazette references.

Specific amendments recorded in marginal notes

• Regulation 8 was amended in 1991 and 1993 (Gazettes cited); r 8 now fixes the lodgement fee at $1,100 and bears a note “Regulation 8 amended: Gazette 8 Nov 1991 p. 5717; 31 Aug 1993 p. 4686.” This indicates the lodgement fee has been changed historically.
• Form 2 was amended in 2003 (Gazette 6 Jun 2003 p. 2025; 30 Jun 2003 p. 2635). The Schedule was amended at those times as well.

Inserted provisions and later additions

• The compilation notes indicate that a heading was inserted on Gazette 4 Jan 2013 p. 6 for Part 1 and Part 2 and Part 3, and that regulations 9-13 were inserted by regulations published 4 Jan 2013, taking effect 5 Jan 2013 (except for r 1 and r 2). Thus the Part 3 voluntary transfer provisions are a later addition (2012/2013 amendments) that align the regulations with Corporations Act Part 5D.6 mechanisms.
• The Schedule forms have been refined over time. The 2003 amendments to Form 2 and the Schedule suggest alignment with Commonwealth definitions (Form 2 references the Corporations Act definition of “financial market”) and possible changes in format and content for balance sheet disclosure.

What the amendment history signals about regulatory priorities

• The 1991 and 1993 amendments, affecting r 8, show the State adjusting lodgement fees in the early 1990s. The 2003 amendments reflect the wholesale financial services reform and consequential alignment with the Commonwealth’s Corporations Act and reporting requirements. The 2012/2013 amendments explicitly inserted a Part to facilitate voluntary transfers under the Corporations Act, signaling State-level adaptation to Commonwealth corporate restructuring/insolvency mechanisms and an intent to streamline interjurisdictional transfer and registration processes.
• The schedule and forms were updated to reflect changes in accounting and disclosure practices and to maintain alignment with Commonwealth terminology (for example, references to a “financial market” as defined by the Corporations Act).

The compilation table provides the authoritative timeline and indicates that the regulations have been selectively updated for administrative fees, forms and interjurisdictional facilitation rather than to change substantive trustee law.

The text provided for the Trustee Companies Regulations 1988 contains no entries under litigation history. The compilation notes and the Schedule do not cite judicial decisions, and no cases are referred to in the regulations themselves or in the explanatory marginal notes supplied.

What the source shows

• There are no judicial decisions, reported appeals, or tribunal determinations included in the text of these regulations.
• The regulations contain provisions that affect evidence and registration (for example, r 11 certificates being “evidence of the matters certified”), but the text does not record case law interpreting those provisions.

Implications for practitioners

• Because the regulations themselves do not include any litigation history, practitioners must consult case law databases and other legal resources to find any judicial interpretation of the regulation provisions, particularly in relation to:
  • the evidentiary weight and potential contestability of ASIC certificates under r 11;
  • registrar obligations and the practical operation of r 12 (registration “in an appropriate manner”);
  • the interaction between Part 3 transfers and property law statutes (for example, land title or personal property security registration) where registrars or third parties dispute the appropriate manner of registration.
• Where parties anticipate disputes (for example, contested transfers, creditor or beneficiary objections, or registry refusal), they should not rely solely on the regulations; they should obtain up-to-date legal research into any reported cases that may have interpreted the regulations or their interaction with the Corporations Act and State registration statutes.

Because the provided source contains no litigation references, any statement about judicial interpretation would have to be supported by external case law research beyond the regulatory text. The regulations themselves set the statutory framework but leave dispute resolution and interpretive questions to courts and tribunal practice, none of which is recorded in the text provided.

The regulations contain specific, sometimes surprising operational constraints and procedural details that can trip up practitioners if overlooked. These are concrete items drawn from the text that have practical consequences.

Publication and dissemination requirements

• Free provision to specific persons. Trustee companies must give a free copy of the current scale of charges to any person approaching the company to make a will which names the trustee company as executor (r 3(1)(a)), and to any person who requests a copy (r 3(1)(b)). Practitioners often assume public availability means “on request by certain professional users” only; here the obligation covers any person making a will naming the company and any requester.
• Availability at public offices. The regulation requires copies to be available free of charge at any office open to the public (r 3(2)). A trustee company with multiple branches must ensure stock at each public office, not merely centralised online publication.
• Minimum print size. The scale and any published notice must be printed no smaller than 5 point Roman type face (r 3(6)). That is a technical but mandatory formatting requirement; failure to comply could render the publication non-compliant even if the content is correct.
• Newspaper publication requirement and statewide circulation. A trustee company proposing to alter its scale must publish a notice in the public notices section of a daily newspaper circulated throughout the State (r 3(4)). This is not a local paper or targeted online notice,Statewide circulation is specified. The notice must be published at least 14 days before the alteration takes effect (r 3(5)). The costs of statewide newspaper publication, and ensuring placement in the “public notices” section, are non‑trivial.

Form and lodgement pitfalls

• Form substance over style. Regulation 7(1) permits the Commissioner to require strict compliance with the style of Schedule forms, but more importantly r 7(2) makes strict compliance with the substance of, and the information required by, the forms necessary unless the Commissioner otherwise approves. That means a return that deviates in substance from the Schedule risks rejection unless approved. Do not assume minor rewording is harmless; key line items and required disclosures (e.g., contingent liabilities, related party definitions, details of credit facilities) must be included (r 5, Schedule).
• Directions and annexures. Regulation 6 requires completion in accordance with directions and instructions specified in or relating to the form; Form 1 expressly requires annexing a balance sheet and profit and loss account for the relevant six month period. Omitting annexures could be treated as non‑compliance.
• Fee amount and amendment history. The lodgement fee is $1,100 (r 8). Past practitioners may rely on obsolete fee figures if they do not check the regulation’s current version.
• Commissioner’s practical gatekeeping. Because the Commissioner can demand strict style compliance or approve departures from substance, applications or returns may face additional administrative hurdles. Seek prior approval if deviation from form is contemplated.

Part 3 and transfer mechanics

• Federal-State coordination requirement. Part 3 applies only where ASIC makes a determination under Corporations Act s 601WBA and issues a certificate under s 601WBG (r 10(1)(a)-(b)), and where either or both transferring/receiving companies are registered in WA (r 10(1)(c)). If the corporate parties are not registered in WA, the regulation does not apply; practitioners must check registration status carefully.
• Transfer without conveyance or assignment, but registration still required. Regulation 10(3)(a) declares assets and liabilities become the receiving company’s “without any transfer, conveyance or assignment.” However r 12 requires registrars and recording authorities to register or record the transfer on application accompanied by an ASIC certificate. Practitioners should note that although legal succession occurs by statute, registerable interests (for example, land titles) still require application and registration. That is: statutory succession does not eliminate the need to present proof to registrars for public recordation.
• Evidentiary status is “evidence,” not expressly conclusive. Regulation 11(2) states a certificate “is evidence of the matters certified.” The regulation does not specify conclusiveness or preclude contest; thus parties may still litigate the certificate’s correctness. Expect disputes to require further factual proof or judicial resolution in contested cases.
• State tax exemption scope. Regulation 13 states State tax is not payable “in respect of a transfer of estate assets or liabilities facilitated under this Part.” Practitioners should confirm the exact nature of the transfer being “facilitated under this Part” (i.e., triggered by ASIC determination and certificate). Confirming documentation and alignment with Commonwealth processes is essential to secure the exemption.

Drafting and interpretation items

• References to external statutes and terms. Forms and definitions in the Schedule refer to terms under the Corporations Act (e.g., “financial market”), and the Schedule places obligations about valuation methods and presentation (notes 3 and 6 to Form 2). Practitioners must read the forms together with the Corporations Act definitions and accounting conventions.
• Related party breadth. The Schedule’s definition of “related parties” (Form 2, Definitions, item 4) is broad, including directors, executive officers, their relatives and companies controlled by them, parties that can significantly influence the company’s management, and certain unincorporated associations. Practitioners preparing a s 33 statement must therefore perform a thorough related party review to identify all required disclosures.
• Timing of balance date and reporting window. Form 1 requires specifying the “balance date” and annexing accounts for the relevant six month period; understanding whether the return is for the half-year or full year, and aligning it to the company’s financial calendar, is necessary to avoid timing mismatches.

In short, the gotchas are concrete and operational: publication format and distribution obligations, strict substance compliance for returns, the specific documentary pathway required to operationalise Commonwealth transfers in State registries, and the evidentiary but not necessarily conclusive status of ASIC certificates.

This section gives practical, step‑by‑step compliance guidance grounded in the regulation text. It is organised by the principal obligations: publication of scales, s 33 returns, and Part 3 transfer processes.

Publication of scale of charges (r 3)

1. Maintain a current scale of charges document that includes:

   • the statement required by s 18(9) of the Act; and
   • the additional statements mandated by r 3(3): that the trustee company is entitled to reimbursement of all properly made disbursements in the administration or management of an estate, and that charges in the scale may apply where the estate participates in an Estate Common Trust Fund.

2. Distribution channels:

   • Provide a free printed or electronic copy immediately to any person who approaches the trustee company for the purpose of making a will naming the trustee company as executor (r 3(1)(a)).
   • Provide a free copy on request to any person who requests one (r 3(1)(b)).
   • Ensure copies of the current scale (and copies of a proposed scale once a public notice is published) are available free of charge at any office of the trustee company which is open to the public (r 3(2)).

3. When changing the scale:

   • Prepare a proposed scale and a public notice that states the date the alteration will take effect, details of the proposed alteration, and that copies of the proposed scale are available on request at any office (r 3(4)(a)-(c)).
   • Publish the notice in the public notices section of a daily newspaper circulated throughout the State at least 14 days before the alteration takes effect (r 3(5)). Retain proof of publication and circulation evidence.
   • Ensure published material uses at least 5 point Roman type face (r 3(6)).

4. Recordkeeping:

   • Keep records of requests and distributions of scales, proofs of newspaper publication, and dated copies of the current and proposed scales for audit and compliance reviews.

Statements under section 33 (r 5-8, Schedule)

1. Prepare the required forms:

   • Complete Form 1 (Schedule) for the s 33(1)(a) or (b) statement, and annex a balance sheet and profit and loss account in the format of Form 2 (r 5).
   • Observe the Schedule’s “Directions” and “Instructions” (Form 1 requires deletion where appropriate and specifies the annexure of financial statements; Form 2 includes line items and definitions).

2. Ensure substantive compliance:

   • Strict compliance with the substance of the forms is mandatory unless the Commissioner approves otherwise (r 7(2)). Do not omit required disclosure items such as contingent liabilities, related party loans, credit facilities and the net tangible assets calculation.
   • Follow the completion directions (r 6).

3. Payment of fee:

   • Pay the lodgement fee of $1,100 when lodging the statement under s 33(1)(a) or (b) (r 8). Ensure accounting codes and payment procedures reflect current fee amounts.

4. Commissioner engagement:

   • If you intend to depart from the specific style (format) or substance of the forms, seek prior approval from the Commissioner. The Commissioner can require strict style compliance (r 7(1)) or approve departures from substance (r 7(2)). Early engagement reduces risk of rejection.

5. Accounting and audit:

   • The Form 1 statement includes statements of opinion that the annexed accounts give a true and fair view and that the company will be able to pay its debts when due. Ensure appropriate accounting procedures and, where necessary, auditor sign-off are in place before lodging.

Voluntary transfers under Part 3 (r 9-13)

1. Identify applicability:

   • Confirm that ASIC has made a voluntary transfer determination under the Corporations Act s 601WBA and issued a certificate under s 601WBG. Confirm that either or both the transferring company and the receiving company are registered in Western Australia (r 10(1)).

2. Obtain and rely on ASIC certificate:

   • Obtain the ASIC certificate of transfer once issued (r 10(1)(b)). Where the certificate includes provisions of the kind referred to in Corporations Act s 601WBG(3), understand whether the certificate specifies that particular things “are to happen” or specifies a mechanism for determining them (r 10(4)(a)-(b)). The certificate is the operative document for the succession in law under r 10(2)-(3).
   • Rely on r 11 certificates if ASIC or an authorised ASIC officer issues a certificate identifying specific assets or liabilities that have become assets or liabilities of the receiving company. Keep originals and certified copies; r 11(2) states such certificates are evidence of the matters certified.

3. Registrar/recording steps:

   • Prepare an application for registration or recordation to the relevant Registrar of Titles, Registrar of Deeds and Transfers, or other recording authority required under State law (r 12). Include the ASIC certificate issued under r 11 with the application.
   • Follow the registrar’s procedural requirements for registration; the registrar is required to register or record the transfer “in an appropriate manner” upon application accompanied by the certificate (r 12). Keep proof of lodgement and confirmation of registration.

4. Tax considerations:

   • Note that State tax is not payable in respect of the transfer under r 13. Nevertheless, where transfers involve multiple jurisdictions or where documentation is complex, retain evidence that the transfer was “facilitated under this Part” and that it was effected by ASIC certificate to support the tax exemption in the event of inquiries.

5. Manage creditors and other third parties:

   • Even though r 10(3)(a) states assets and liabilities become those of the receiving company “without any transfer, conveyance or assignment,” practical steps may still be required to notify secured creditors, counterparties and registries (for example, land title registries, PPSR where applicable) to update records and ensure enforceability of security. Use the ASIC certificate and registrar confirmations as documentary proof.

Practical compliance checklist

• Trustee company: maintain and regularly review scale of charges; implement distribution procedure to supply free copies on request and to persons making wills naming the company as executor; establish process for public notice placement and proof of publication; ensure font and print size compliance.
• Reporting: maintain up‑to‑date financial records for timely completion of Form 1 and Form 2; appoint responsible officers to sign Form 1 (Managing Director or specified officers); pay $1,100 lodgement fee; obtain Commissioner approval where deviation from form or substance is contemplated.
• Transfers: coordinate with corporate counsel and ASIC early in the Corporations Act transfer process; obtain the ASIC determination and certificate; prepare registrar applications; document the chain of authority and preserve certificates; gather evidence needed for tax exemption.
• Recordkeeping: maintain copies of all published notices, copies supplied to requestors, Form 1/Form 2 submissions, payment receipts, ASIC certificates and registrar confirmations; these form the audit trail required by regulators.

If any uncertainty exists about the Commissioner’s likely approach to form departures or the registrar’s method of recording a transfer, seek pre‑lodgement advice from the Commissioner’s office, ASIC, or the relevant registrar. For tax certainty, obtain a written advice from State Revenue or counsel where the transfer is novel or complex.

Compliance, as set out in the regulations, is document and process driven; follow the textual requirements in r 3-8 and r 10-13 and ensure robust recordkeeping of all public notices, forms and certificates.