Trustees of Western Australia Limited (Transfer of Business) Act 2003

Vesting by statute: The central vehicle is statutory vesting of an “undertaking” in Plan B Trustees on the appointed day (s 5(1)). The undertaking is defined to include all TrustWest property apart from excluded assets, all rights and liabilities other than those relating to excluded assets, and all appointments (s 3). This statutory vesting is not limited to tangible property; property is broadly defined to include choses in action, goodwill, rights, interests and claims of every kind (s 3, definition of property).

Excluded assets: The Act carves out two categories as excluded assets: documents required by law to be kept by TrustWest; and land held by TrustWest as beneficial owner and not as trustee, nominee or otherwise for another person, together with buildings or structures on that land (s 3). The effect is that statutory vesting is not intended to transfer those assets to Plan B Trustees, although the Act contains mechanism to allow Plan B Trustees to exercise certain rights in relation to excluded land assets (s 7).

Automatic substitution of party: The Act provides that references to TrustWest in instruments, caveats, transmissions, survivorship applications and other documents made before the appointed day are to be read and construed as references to Plan B Trustees (s 5(2)). Similarly, many instruments and contracts in force immediately before the appointed day are declared to be binding on and enforceable by or against Plan B Trustees to the same extent as they had been for TrustWest (s 6(9)). These forced substitutions are subject to excluded assets and to the context.

Registered land and registration mechanics: For land under the Transfer of Land Act 1893, vesting is treated as creating Plan B Trustees as the registered proprietor for estates or interests that vested in Plan B Trustees (s 5(4)). The Registrar of Titles must, on Plan B Trustees’ application and payment of the appropriate fee, register Plan B Trustees as proprietor (s 5(5)). The Act also forces registration of instruments executed by Plan B Trustees if otherwise in registrable form even if Plan B is not yet registered as proprietor (s 5(6)).

Continuity of obligations and proceedings: The Act preserves continuity of legal proceedings (s 6(10), s 8), and preserves the right of TrustWest to enforce any liability which for some reason remains with TrustWest after the appointed day (s 5(7)). Documentary evidence admissible for or against TrustWest before the Act remains admissible for or against Plan B Trustees after vesting (s 9).

Employee transition: Transferred employees become employees of Plan B Trustees with unbroken service and identical terms and conditions on and after the appointed day until varied (s 10(a)-(b)). Employees are not entitled to receive any payment solely because of the change (s 10(c)). Directors, secretary and auditor do not become the corresponding officers of Plan B Trustees by operation of the Act (s 10(e)).

Prescribed securities and certificate mechanism: The Act enables a certificate by the Chief Executive Officer (or delegate) of Plan B Trustees to be a sufficient stamped instrument of transfer for prescribed securities vested in Plan B Trustees under the Act, but only where such securities will be held by way of security (s 11(1)-(2)). Prescribed securities is defined by reference to the Corporations Act 2001 (s 3).

Protections for third parties and registration officers: Persons dealing with Plan B Trustees or TrustWest are not required to enquire whether property is an excluded asset (s 13(1)). If a dealing is entered into by Plan B Trustees in relation to an excluded asset, that dealing is taken to be within Plan B’s authority in favour of those dealing with it (s 13(2)). Conversely, if TrustWest enters into a dealing in relation to property that has vested in Plan B Trustees, it is to be taken in favour of those dealing that TrustWest had full power and authority as if the asset were an excluded asset (s 13(3)). The section preserves liabilities of Plan B Trustees or TrustWest in respect of anything done or purporting to be done in relation to excluded assets or other property (s 13(4)).

Interaction with Trustee Companies Act 1987: The Act transfers specific common trust funds of TrustWest to Plan B Trustees as trustee and amends Schedule 1 to the Trustee Companies Act 1987 to substitute Plan B Trustees Limited for Trustees of Western Australia Limited (s 14, s 15). The common trust funds and assets and liabilities held by TrustWest in those capacities are vested in Plan B Trustees to be held on the same terms and conditions (s 14).

Saving clauses and protection against technical breaches: The Act expressly provides that nothing done or suffered under it is to be regarded as placing TrustWest or Plan B Trustees in breach of trust, contract or confidence or as otherwise rendering either liable for a civil wrong, or as breaching any law or contractual provision restricting assignment or disclosure, insofar as it would not have been so regarded if TrustWest had done it and the Act had not been enacted (s 6(11)-(12)). These are statutory protections designed to remove technical obstacles to the transfer, subject to the exceptions stated.

Directly affected parties

• TrustWest: all of TrustWest’s undertaking (except excluded assets) is vested in Plan B Trustees on the appointed day (s 5(1)). TrustWest remains relevant to the extent that any liabilities continue to be liabilities of TrustWest after the appointed day; in that case TrustWest retains rights and may enforce those liabilities (s 5(7)). TrustWest’s role thereafter is limited to excluded assets and any liabilities that remain with it.

• Plan B Trustees: receives the undertaking and steps into the contractual, fiduciary and property positions of TrustWest for all non-excluded assets and appointments (s 5(1), s 6(9)). Plan B Trustees must apply for registration as proprietor of land vested under the Transfer of Land Act and pay the requisite fees (s 5(5)) and may execute instruments and have them registered even if not yet shown as proprietor (s 5(6)).

• Employees of TrustWest: each employee ceases to be employed by TrustWest and becomes an employee of Plan B Trustees on the appointed day, with continuity of service and the same terms and conditions until varied (s 10(a)-(b)). Employees do not receive any payment simply by reason of the transfer (s 10(c)). Directors, secretary and auditor do not transfer roles (s 10(e)).

• Clients, beneficiaries and depositors of TrustWest: contractual and fiduciary relationships are transferred so the relationship continues as between Plan B Trustees and those persons, with the same rights and liabilities, including set-off rights (s 6(8)). They should expect to be notified and to see new documentation reflecting Plan B Trustees as trustee or service provider.

Third parties dealing in property and securities

• Counterparties to instruments, creditors and obligees: instruments and securities that previously named TrustWest operate as if they named Plan B Trustees on and after the appointed day (s 5(2), s 6(9), s 11). However excluded assets are excluded from that automatic substitution (s 3).

• Persons dealing in relation to excluded assets: the Act provides that parties need not enquire whether an asset is excluded (s 13(1)). If Plan B Trustees enters into a dealing in relation to an excluded asset, the dealing is to be taken to be within Plan B’s authority for the protection of the other party (s 13(2)). The converse is provided for dealings by TrustWest in property vested in Plan B Trustees (s 13(3)). Liability for wrongful acts in relation to excluded assets remains preserved for Plan B Trustees or TrustWest (s 13(4)).

Registration and public officers

• Registrar of Titles and other registrars: must register Plan B Trustees as proprietor on application and fee payment (s 5(5)) and are empowered to record and register documents necessary to give effect to the vesting (s 12). The Registrar of Titles must register instruments executed by Plan B Trustees if they are in registrable form, even if Plan B Trustees is not yet registered as proprietor (s 5(6)).

Legal and regulatory bodies

• Courts and arbitral tribunals: the Act preserves legal proceedings and provides that judgments, orders and awards obtained by or against TrustWest in proceedings begun before the appointed day are enforceable by or against Plan B Trustees (s 6(10), s 8). Documentary or other evidence admissible for or against TrustWest before the Act remains admissible for or against Plan B Trustees (s 9).

Statutory relationships and other third parties

• Sureties and persons who have provided security: the Act expressly states that nothing releases a surety from obligations because of the vesting (s 6(11)(c) and s 6(12)(c)) and security entitlements and priorities transfer to Plan B Trustees for securities held by TrustWest (s 6(4)-(5)).

Indirectly affected parties

• Persons and entities whose lawfully protected records were part of the excluded documents: documents required by law to be kept by TrustWest remain with TrustWest and are therefore not transferred (s 3 definition of excluded assets). This may affect access and custody issues.

• The Crown: the Act binds the Crown (s 4), meaning Crown interests are subject to the operation of the vesting where they intersect with the undertaking.

Collective impact and incentives

• The Act centralises administration and trustee functions in Plan B Trustees for the transferred assets and liabilities, which creates administrative economies for the corporate group (see the Reasons for enactment in the text). That centralisation creates incentives for Plan B Trustees to implement uniform processes for client notification, document management and registration, while imposing administrative tasks and fees that Plan B Trustees must bear to effect registrations (s 5(5), s 5(6)).

• Transfer of employees with service continuity preserves accrued employment rights and superannuation arrangements subject to the limitations in s 10(d) and the non-entitlement to a payment purely because of the change (s 10(c)). Plan B Trustees inherits the operational labour relations footprint, which creates continuing obligations in payroll, award and contract administration.

Statutory vesting duties and rights

• Duty to apply for registration of vested land: Plan B Trustees must apply to the Registrar of Titles and pay the appropriate Transfer of Land Act fee to be registered as proprietor of land vested under the Act (s 5(5)). The Registrar is required to register Plan B Trustees as requested (s 5(5)-(6)).

• Right to deal with securities and property: Plan B Trustees is entitled to all rights, priorities and subject to the liabilities of TrustWest in relation to securities to which TrustWest was entitled immediately before the appointed day (s 6(4)-(5)). Securities held as security for existing debts transfer and are available as security for discharge of those debts (s 6(4)). If securities extend to future liabilities, they are available as security for debts incurred by Plan B Trustees on or after the appointed day (s 6(4)).

• Contractual enforceability: Contracts, deeds, appointments and instruments in force immediately before the appointed day that were binding on or enforceable by or against TrustWest become binding on and enforceable by or against Plan B Trustees to the same extent (except with respect to excluded assets) (s 6(9)). That creates a right for Plan B Trustees to enforce contractual claims and a duty to perform obligations under those instruments.

Employee-related duties and rights

• Duty to treat transferred employees’ service as unbroken: For all statutory, award and contractual purposes, an employee’s service with TrustWest is to be treated as service with Plan B Trustees (s 10(a)). Plan B Trustees has the duty to honour prior service in respect of entitlements calculated by reference to length of service.

• Initial terms and variation: On and after the appointed day the terms and conditions of transferred employees are, until varied, identical with their terms and conditions immediately before the appointed day (s 10(b)(i)). Those terms remain capable of variation in the same manner as before, and are subject to the same instruments and laws as other employees of Plan B Trustees (s 10(b)(ii)).

Evidence and proceedings rights

• Continuation of proceedings and enforcement: Legal proceedings commenced before the appointed day by or against TrustWest can be continued by or against Plan B Trustees and judgments obtained may be enforced by or against Plan B Trustees (s 6(10), s 8).

Third-party protections and duties

• No duty to enquire into excluded asset status: Persons dealing with Plan B Trustees or TrustWest are not required to see or enquire whether property is excluded (s 13(1)). That reduces the transaction costs of counterparties and registrars dealing with Plan B Trustees, but delegates risk allocation to the parties and to Plan B Trustees.

• Contractual authority presumed in dealings: If Plan B Trustees enters into a dealing in relation to an excluded asset, that dealing is to be taken as having full power and authority for the protection of the person dealing with Plan B Trustees (s 13(2)). Conversely, if TrustWest enters into a dealing in relation to property vested in Plan B Trustees, that dealing is to be taken as within TrustWest’s authority (s 13(3)). These are statutory presumptions in favour of persons dealing in good faith.

Limitations and saving clauses

• Excluded assets remain with TrustWest: The vesting does not affect excluded assets as defined (s 3). Rights and liabilities relating to excluded assets stay with TrustWest.

• Liability preservation where vesting does not operate: If for any reason a liability to TrustWest immediately before the appointed day remains a liability to TrustWest on or after that day, TrustWest retains enforcement rights as if the Act had not been enacted (s 5(7)). The Act contains saving provisions that endeavour to prevent the vesting from constituting a breach of trust, contract, confidence or law where TrustWest acting before the Act would not have been in breach (s 6(11)-(12)).

Administrative obligations and delegations

• Chief Executive Officer certificate and delegations: The Act permits a certificate signed by the Chief Executive Officer (or a delegated officer) of Plan B Trustees to be a sufficient instrument of transfer for prescribed securities vested by the Act to be held by way of security (s 11(1)). The Chief Executive Officer also plays a role in the statutory substitution of office-holders; references to holders of particular offices within TrustWest (other than director, secretary or auditor) are to be read as references to the CEO of Plan B Trustees or such officer as the CEO designates (s 5(3)).

• Registrars empowered to act: Registrars of Titles, Deeds and Transfers, mining registrars and any person authorised by a written law to record transactions affecting estates or interests in land or property must take cognisance of the Act and are empowered to record and register necessary documents (s 12).

No bespoke criminal offences or civil penalty scheme

• The Act does not create new criminal offences or a special civil penalty regime. It is primarily a transfer and vesting statute focused on continuity of rights and obligations, registration mechanics and third-party protection. As such, enforcement of rights and obligations transferred under the Act occurs through ordinary civil processes rather than an Act-specific enforcement mechanism.

Enforcement of transferred rights and obligations

• Continuation and enforcement of proceedings: Legal proceedings to which TrustWest was a party immediately before the appointed day may be continued by or against Plan B Trustees (s 8(1)). Judgments, orders and awards obtained by or against TrustWest in proceedings commenced before the appointed day may be enforced by or against Plan B Trustees (s 8(2)). This preserves litigants’ enforcement options without creating new remedies.

• Evidence admissibility: Documentary or other evidence admissible for or against TrustWest before the Act remains admissible for or against Plan B Trustees (s 9). That assists enforcement by allowing continuity of evidentiary materials in litigation or arbitration.

Liability and preservation of obligations

• Liabilities transfer and priorities preserved: For securities and liabilities incurred before the appointed day, Plan B Trustees acquires rights and priorities and is subject to liabilities as TrustWest would have been, including as to priorities and ranks (s 6(4)-(5)). This means that secured creditors’ rights are preserved and can be enforced against Plan B Trustees as if no transfer had occurred.

• Sureties unaffected: The Act expressly provides that nothing releases a surety wholly or in part from obligations because of the vesting (s 6(11)(c) and s 6(12)(c)). That preserves remedies available to creditors where sureties exist.

Third-party protections and residual liabilities

• Statutory protection for persons dealing in good faith: Section 13 protects persons dealing with Plan B Trustees or TrustWest from having to enquire about excluded assets and creates statutory presumptions of authority for dealings. However s 13(4) expressly preserves the liability of Plan B Trustees or TrustWest in respect of anything done or purported to have been done in relation to excluded assets or any other property. This means that while third parties are protected against inquiry burdens, Plan B Trustees and TrustWest retain exposure for wrongful acts.

Administrative enforcement

• Registrar duties: The Registrar of Titles must register Plan B Trustees as proprietor upon application and payment of the appropriate fee (s 5(5)). Registrars must take cognisance of the Act and record necessary documents (s 12). Non-compliance by registrars would be enforceable through the ordinary administrative law and judicial review channels, but the Act places explicit duties on those officers to act.

Limits on statutory override

• Despite clauses that operate “despite anything to the contrary” (for example in s 5(4) regarding land), the Act does not purport to absolve Plan B Trustees or TrustWest from liabilities arising from actual wrongful conduct or from obligations that remain with TrustWest by operation of the Act (s 5(7), s 13(4), s 6(11)-(12)). Enforcement of such liabilities continues as in ordinary law.

Practical enforcement risk points

• The Act preserves and transfers rights but does not create a separate enforcement apparatus. Enforcement will therefore fall to the usual civil litigation, insolvency or enforcement mechanisms, with the caveat that the statute changes the identity of the litigant or proprietor in many contexts. Parties seeking to enforce security interests should note ss 6(4)-(5) and s 11, and should ensure that registration steps under the Transfer of Land Act are taken to perfect those rights where relevant.

Express cross-references and overrides

• Transfer of Land Act 1893: The Act interacts explicitly with the Transfer of Land Act 1893 regarding land under that Act. Section 5(4) provides that, despite anything to the contrary in any written or other law, if a registered estate or interest in land is vested in Plan B Trustees under the Act it is to be taken that Plan B Trustees is the registered proprietor. Section 5(5) requires the Registrar of Titles to register Plan B Trustees on application and payment of the appropriate Transfer of Land Act fee, and s 5(6) requires registration of instruments executed by Plan B Trustees if otherwise in registrable form. Those cross-references mean the Transfer of Land Act’s registration framework is the administrative vehicle for reflecting the statutory vesting, and fees and processes under that Act apply.

• Trustee Companies Act 1987: The Act transfers TrustWest’s common trust funds established under ss 19 and 20 of the Trustee Companies Act 1987 to Plan B Trustees and preserves the terms on which they were held (s 14). Section 15 amends Schedule 1 of the Trustee Companies Act 1987 to remove Trustees of Western Australia Limited and to insert Plan B Trustees Limited. The statutory amendment directly changes the register of trustee companies in that Act.

• Corporations Act 2001: The defined term prescribed securities is given the meaning in the Corporations Act 2001 (s 3). Section 11 enables a CEO certificate of Plan B Trustees to be a sufficient stamped instrument of transfer for prescribed securities vested by the Act where they are to be held by way of security. The Act therefore relies on the Corporations Act concepts for what constitutes prescribed securities and provides an internal mechanism to effect transfer of such securities where they are security interests.

Interaction with rights and duties under other laws

• Despite anything to the contrary: The Act contains language that its vesting operates “despite anything to the contrary in any written or other law” regarding registered estates or interests in land vested in Plan B Trustees (s 5(4)). More generally, the protective saving clauses in s 6(11)-(12) are designed to ensure that actions done under the Act are not treated as breaches of trust, contract, confidence, or laws restricting assignment, in circumstances where TrustWest acting pre-vesting would not have been in breach. The Act thereby seeks to smooth conflicts with other laws or contractual restrictions by absorbing the transfer within statutory authority.

• Securities and priority rules: The Act declares that Plan B Trustees is entitled to all rights and priorities in relation to securities to which TrustWest was entitled before the appointed day, and is subject to the same liabilities (s 6(4)-(5)). That preserves the operation of priority and security regimes under other law, including potentially the Corporations Act, Personal Property Securities and Transfer of Land frameworks where relevant.

Administrative law and registrars

• Registrars and recording officers are required under s 12 to take cognisance of the Act and are empowered to record and register documents necessary to give effect to the Act as they relate to estates or interests in land or other property. That requires the exercise of statutory functions under other Acts (for example the Transfer of Land Act) to incorporate the effects of this Act.

Limitations and non-derogation

• The Act explicitly preserves liabilities and does not purport to extinguish obligations that remain with TrustWest after the appointed day (s 5(7)). It also preserves liability for anything done or purportedly done by Plan B Trustees or TrustWest in relation to excluded assets (s 13(4)). Those provisions mean the Act interacts with other laws by effecting vesting and substitution, but it leaves intact substantive liabilities and does not eliminate the operation of other regulatory or liability regimes.

Practical considerations where interaction matters

• Parties enforcing security interests should check registration regimes and applicable fees under the Transfer of Land Act since the Act places registration obligations on Plan B Trustees and registrars to reflect the vesting (s 5(5)-(6), s 12).

• The meaning of prescribed securities is imported from the Corporations Act 2001; changes to that Commonwealth definition after the Act’s commencement may affect the operation of s 11. Practitioners should read prescribed securities as defined in the Corporations Act at the relevant time.

• The Act’s provisions need to be read alongside the Trustee Companies Act 1987 because s 14 transfers common trust funds to Plan B Trustees and s 15 amends Schedule 1 of that Act. Any compliance and reporting obligations under the Trustee Companies Act remain relevant.

Textual amendment contained in the Act

• The Act itself contains one express amendment provision. Section 15 amends Schedule 1 to the Trustee Companies Act 1987 by deleting references to LAMP Management Limited and Trustees of Western Australia Limited, and inserting Plan B Trustees Limited in the appropriate alphabetical position. That amendment updates the registry of trustee companies in the Trustee Companies Act.

Commencement and proclamation

• The Act commences on a day fixed by proclamation (s 2). The compilation table supplied with the Act records that assent was given on 17 April 2003 and that commencement occurred by Gazette on 1 July 2003 (compilation table). The appointed day for the statutory vesting is separately fixed by proclamation in accordance with s 2 and the definition of appointed day in s 3.

Subsequent amendment record not contained in the source

• The source text provided is the Act as compiled. It contains no recorded subsequent amending Acts or other amendments in the text supplied. The compilation table shows the original Act (No. 18 of 2003) with dates of assent and commencement. If there have been later amendments after compilation, those are not part of the provided source and are not recorded here.

Implication for due diligence and records

• Because the Act amends the Trustee Companies Act 1987 Schedule 1, anyone reviewing corporate registers under that Act for trustee company names must note that Plan B Trustees Limited replaces Trustees of Western Australia Limited as at the date of the amendment (s 15). Users should consult the current legislative compilation for any further amendments not included in this source.

No cases or litigation recorded in the Act

• The text of the Act itself contains no references to judicial decisions, litigation outcomes or challenges to the Act. The Act does not name any cases.

What the Act preserves for litigants

• The Act preserves existing legal proceedings and judgments. Legal proceedings in which TrustWest was a party immediately before the appointed day may be continued by or against Plan B Trustees (s 6(10), s 8(1)), and judgments, orders or awards obtained by or against TrustWest in legal proceedings commenced before the appointed day may be enforced by or against Plan B Trustees (s 8(2)). Documentary and other evidence admissible for or against TrustWest before vesting is admissible for or against Plan B Trustees after vesting (s 9). Those provisions are designed to ensure that vesting does not interrupt ongoing litigation.

Implication for research and precedent

• The Act does not supply litigation history. For any litigation involving the operation of this Act, or disputes about whether particular assets are excluded or whether particular liabilities remained with TrustWest, one must consult case law databases and court records outside this statutory text. No such cases are cited in the Act itself. Practitioners should therefore conduct independent case-law searches if litigation history is required.

Definitions that change operation materially

• Excluded assets carve-out: The operation of the Act is significantly affected by the definition of excluded assets (s 3). The definition excludes documents required by law to be kept by TrustWest and land held by TrustWest as beneficial owner and not as trustee, nominee or otherwise for another person. A mischaracterisation of an asset as excluded or non-excluded could change whether vesting applies and could create liability. Although s 13(1) relieves third parties from having to enquire, Plan B Trustees and TrustWest remain exposed for wrongful acts relating to excluded assets (s 13(4)).

• Appointments: The defined term appointment is broad and includes appointments by will, codicil, deed, agreement, declaration, nomination, Supreme Court appointment, or under any written law (s 3). That breadth means court-ordered trustee roles and testamentary appointments are included in the undertaking and therefore may be transferred by the Act unless they relate to excluded assets.

Registration procedural traps

• Registration is not automatic: While the vesting occurs by statute, Plan B Trustees must apply for registration as proprietor of land vested under the Transfer of Land Act and pay the appropriate fee (s 5(5)). Failure to apply, or delays in registration, can create practical issues,for example, third parties dealing with Plan B Trustees may rely on s 13 protections but Plan B may not yet be recorded as proprietor.

• Instruments registrable despite non-registration: Section 5(6) requires the Registrar of Titles to register instruments executed by Plan B Trustees if otherwise in registrable form, even though Plan B Trustees is not yet registered as proprietor. That helps avoid transactional gridlock but requires Plan B Trustees to be able to execute registrable instruments and to present them for registration.

Employees and managerial roles

• Directors, secretary, auditors do not transfer: Unlike other employees, directors, secretary and auditor of TrustWest immediately before the appointed day do not become those officers of Plan B Trustees by operation of the Act (s 10(e)). Parties should not assume automatic continuity of governance roles.

• No entitlement to a payment on transfer: Transferred employees are not entitled to any payment or benefit solely by virtue of ceasing to be employees of TrustWest because of the Act (s 10(c)). This may be important where an employment contract contains termination-triggered benefits; statutory transfer does not, by itself, trigger such payments.

Prescribed securities limitation

• CEO certificate limited to securities held by way of security: Section 11 permits a CEO certificate to be a sufficient stamped instrument of transfer only for prescribed securities that, when vested in Plan B Trustees, will be held by way of security (s 11(1)-(2)). The certificate mechanism therefore does not cover all kinds of prescribed securities transfers, only those held by way of security.

Liability and priority subtleties

• Liabilities remaining with TrustWest: The Act contemplates that some liabilities may remain liabilities of TrustWest after the appointed day; in such cases TrustWest retains the right to enforce them (s 5(7)). Determining which liabilities remain and which transfer may require detailed factual and legal analysis and can be a source of dispute.

• Saving clauses and assumptions about breach: Sections 6(11)-(12) attempt to ensure that actions done pursuant to the Act are not to be regarded as breaches of trust, contract, law or confidence if the same would not have been regarded so had TrustWest done them before the Act. That does not provide carte blanche immunity and setting the scope of those protections could be litigated.

Third-party dealing protections and exposure

• No duty to enquire but residual exposure: Section 13 liberates third parties from a duty to see or enquire whether property is excluded (s 13(1)), and creates statutory presumptions of authority in favour of persons dealing in good faith (s 13(2)-(3)). However s 13(4) preserves liability of Plan B Trustees or TrustWest in respect of anything done in relation to excluded assets or other property. Parties should not assume the Act insulates Plan B Trustees from all claims.

Timing risks

• Appointed day by proclamation: The Act’s key effects crystallise on the appointed day fixed by proclamation under s 2. There can be practical risk from uncertainty about the appointed day until the proclamation is made public, including timing of notices to clients, employees and counterparties, and timing of registration applications under the Transfer of Land Act.

Cross-jurisdictional and statutory definition traps

• Prescribed securities defined by Commonwealth law: The Act imports the term prescribed securities from the Corporations Act 2001 (s 3). Changes in Commonwealth definitions or different interpretive approaches may affect operation of s 11 and related provisions.

Administrative implementation requirements

• Fees and procedural requirements under other Acts: The Act requires payment of appropriate fees under the Transfer of Land Act 1893 for registration (s 5(5)-(6)). Practitioners should not overlook other administrative or fee obligations under the laws that the Act interacts with.

Checklist for Plan B Trustees and TrustWest (practical steps grounded in the Act)

1. Fix appointed day by proclamation: Ensure the appointed day is published by proclamation as required by s 2 so that vesting effects are effective and ascertainable.

2. Identify the undertaking and excluded assets: Prepare a detailed schedule mapping assets, rights, liabilities and appointments that form the undertaking under the Act (s 3). Separately list excluded assets as defined in s 3 so that TrustWest retains custody and Plan B Trustees can identify which assets are not statutorily vested.

3. Registration of land: For land under the Transfer of Land Act 1893 that vests in Plan B Trustees, prepare and lodge applications for registration with the Registrar of Titles and pay the appropriate Transfer of Land Act fees (s 5(4)-(6)). Plan B Trustees should be ready to execute registrable instruments; registrars must register instruments executed by Plan B Trustees even if Plan B is not yet shown as proprietor (s 5(6)).

4. Notify and manage employees: For each transferred employee, prepare notices confirming the transfer of employment, the preservation of service as unbroken, and the initial identical terms and conditions (s 10(a)-(b)). Ensure payroll, superannuation and awards are aligned with transfer dates, and record that directors, secretary and auditor do not transfer under the Act (s 10(e)). Treat s 10(c) carefully,no payment is required solely because of the transfer.

5. Manage prescribed securities: For any prescribed securities that will be held by way of security, prepare CEO-signed certificates in accordance with s 11(1) to serve as sufficient stamped instruments of transfer. Ensure the CEO has delegated authority where necessary. Confirm that the Securities in question meet the definition of prescribed securities as in the Corporations Act 2001 (s 3).

6. Contracts, deeds and appointments: Prepare a schedule of contracts, declarations of trust, deeds, appointments and similar instruments in force immediately before the appointed day so they can be relied upon as binding and enforceable by or against Plan B Trustees after vesting (s 6(9)), except those relating to excluded assets.

7. Litigation and claims: Identify proceedings in which TrustWest is a party and prepare for continuation by or against Plan B Trustees (s 6(10), s 8). Ensure evidence and documents admissible for or against TrustWest are accessible and organised to remain admissible for or against Plan B Trustees (s 9).

8. Registrars and officers: Engage with registrars (Registrar of Titles, Registrar of Deeds and Transfers, mining registrars and other registration officers) and provide them with details to permit recording and registration under s 12. Where registration is required under other written laws, prepare the documentation in registrable form to facilitate registrar action under s 5(6) and s 12.

9. Client and beneficiary communications: Notify clients, beneficiaries and depositors that Plan B Trustees will assume the relationships and that their rights and liabilities remain (s 6(8)). Provide counterparties with updated contact details and, where appropriate, instruments indicating Plan B Trustees as successor trustee.

10. Review surety and security arrangements: Review surety and guarantee arrangements to ensure they remain effective post-vesting (s 6(11)-(12), s 6(4)-(5)). Liaise with secured creditors and counterparties to confirm expectations and, where necessary, obtain acknowledgements.

11. Maintain governance and delegations: Ensure the Chief Executive Officer of Plan B Trustees (or authorised delegate) is in a position to give certificates under s 11 and to designate officers as contemplated by s 5(3) where references to particular internal office-holders of TrustWest are to be read as references to Plan B Trustees office-holders.

12. Document retention and excluded documents: For documents required by law to be kept by TrustWest (excluded assets), ensure secure retention and access arrangements remain with TrustWest and that possession and custody are appropriately documented (s 3).

13. Tax, superannuation and statutory obligations: Although the Act preserves continuity of service and contractual relationships (s 10), ensure that payroll, withholding, superannuation contributions and tax reporting are adjusted to reflect the employer change on the appointed day. While the Act preserves rights and obligations, statutory filing and reporting obligations under other laws remain in force.

14. Update statutory registers: Arrange for the Schedule 1 amendment to the Trustee Companies Act 1987 (s 15) to be recorded, and update corporate registers, trust registers and public information to reflect Plan B Trustees as the trustee company where appropriate.

Practical drafting and transaction documents to prepare

• Vesting schedule: a document listing assets, excluded assets, rights and liabilities, and mapping each to steps required (registration, consents, notifications).

• CEO certificate template: prepared in the form contemplated by s 11 for prescribed securities to be held by way of security, with delegation provisions included.

• Employee transfer notices and acknowledgment templates: to confirm continuity of service and terms under s 10.

• Registrar lodgement pack: registrable instruments executed by Plan B Trustees, supporting affidavits or certificates, and fee payments for Transfer of Land Act registrations (s 5(5)-(6), s 12).

• Counterparty notices: templates to inform counterparties of substitution under s 5(2) and the legal effect under s 6(9).

Risk management steps

• Conduct due diligence to confirm which assets are excluded to avoid inadvertent dealing with excluded assets that remain with TrustWest (s 3, s 13(4)).

• Where permitted, obtain acknowledgements from major counterparties and secured creditors confirming acceptance of Plan B Trustees as successor to avoid future disputes about liabilities that might otherwise remain with TrustWest (s 5(7)).

• Engage with registrars early to streamline registration and avoid transactional delays. Confirm fee amounts under the Transfer of Land Act and prepare for timely payment (s 5(5)).

• Maintain contemporaneous records demonstrating that employee service continuity and terms were preserved in accordance with s 10 to minimise employment disputes.

• Verify the scope of prescribed securities under the Corporations Act 2001 at the time of transfer to ensure s 11 certificates are appropriate.

Concluding practical note

The Act provides statutory mechanisms to accomplish a corporate group reorganisation of trustee functions with a view to reducing transactional formalities. Compliance therefore requires careful identification of excluded assets, timely registration under the Transfer of Land Act, clear management of employee transfers and documentation of CEO certificates for prescribed securities. The statutory protections for third parties reduce the need for exhaustive enquiries by registrars and counterparties but do not eliminate exposure for wrongful acts, so focused due diligence and targeted acknowledgements remain prudent.