26DHousing loans, trustees' liability for

26D. Housing loans, trustees’ liability for

(1) If a trustee lends money on a real security in accordance with the provisions of this Act, or had made such a loan in accordance with the provisions of this Act as in force immediately before the coming into operation of the Trustees Amendment Act 1997 1, the trustee is not chargeable with breach of trust by reason only of the proportion borne by the amount of the loan to the value of the property on which the loan is secured if —

(a) the trustee was not expressly forbidden by the instrument (if any) creating the trust to lend money on a real security; and

(b) the loan was a housing loan; and

(c) the loan is secured by a contract of insurance in the prescribed form entered into with an authorised insurer.

(2) The Minister may by notice published in the Gazette —

(a) declare a corporation that is lawfully carrying on the business of insuring mortgages in Western Australia to be an authorised insurer for the purposes of this section; and

(b) revoke a declaration made under paragraph (a).

(3) The Minister may by notice published in the Gazette —

(a) specify terms and conditions subject to which an authorised insurer is authorised to enter into contracts of insurance for the purpose of this section; and

(b) vary or revoke any such terms and conditions.

(4) An authorised insurer who fails to comply with any terms or conditions subject to which it is authorised to enter into contracts of insurance for the purpose of this section shall be guilty of an offence.

Penalty: $5 000.

authorised insurer means a corporation that has been declared to be an authorised insurer under subsection (2);

dwelling‑house includes —

(a) any building that consists, or any buildings that consist, in whole or in substantial part, of residential accommodation, whether constituting a single unit of accommodation or 2 or more such units; and

(b) any residential accommodation of a kind commonly known as a flat or home unit; and

(c) appurtenances, outbuildings, fences and permanent provision for lighting, water supply, drainage and sewerage provided in connection with the dwelling‑house;

housing loan means a loan —

(a) made for any one or more of the following purposes, that is to say, of enabling the borrower —

(i) to acquire a prescribed interest in land and construct, or complete the construction of, a dwelling‑house on the land; or

(ii) to construct a dwelling‑house, or complete the construction of a dwelling‑house, on land in which the borrower has a prescribed interest; or