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professional trustee see section 59.
trustee includes a custodian trustee.
159 Remuneration of professional trustees
(1) A professional trustee for whom no benefit or remuneration is
provided in the trust instrument is entitled to charge, and to be
paid out of the trust property, the trustee’s professional
charges in relation to the trust.
(2) This section applies subject to an express contrary intention in
the trust instrument.
160 Remuneration of trustees under court order
(1) The court may, on application by a trustee (including a
professional trustee), make an order authorising the trustee to
charge, and to be paid out of the trust property, the
remuneration for the trustee’s services that the court considers
appropriate if the circumstances appear to the court to justify
the charge.
(2) If the application is made by a professional trustee, the court
may take into account any professional charges that have been
paid out of the trust property to the trustee under section 159.
161 Court may reduce excessive amounts for commission
and professional charges
(1) This section applies if the court considers that either of the
following amounts charged, or proposed to be charged, by a
trustee in respect of a trust is excessive—
(a) an amount for commission;
(b) an amount for professional charges.
(2) The court may, on application by a person interested in the
trust or on its own initiative, review the amount and, on the
review, reduce the amount.
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(3) Subsection (2) applies despite any provision of an Act, or of
the trust instrument, authorising the charging of the amount.
(4) However, this section does not apply in relation to a trustee
that is—
(a) a licensed trustee company; or
(b) the public trustee, to the extent an amount mentioned in
subsection (1)(a) or (b) is charged, or proposed to be
charged, by the public trustee as fees and charges under
the Public Trustee Act 1978, section 17.
(5) In this section—
amount includes part of an amount.
Part 11 Court powers
Division 1 Preliminary
162 Definition for part
In this part—
possessed, of property, includes—
(a) entitled to the receipt of income of property; and
(b) entitled to any vested estate (less than a life interest), at
law or in equity, in possession or in expectancy, in land.
Division 2 Applications for orders
163 Persons who may apply for particular orders relating to
trusts and trust property
(1) This section applies to an application to the court for any of
the following orders in relation to a trust—
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(a) an order under section 15 approving the appointment of
more than 4 trustees of the trust;
(b) an order under section 166 appointing a new trustee;
(c) an order under section 166 removing a trustee;
(d) an order under section 168 disqualifying a person from
being appointed as a trustee or removing the person as a
trustee;
(e) an order under this Act relating to the trust property.
(2) The application may be made by—
(a) a trustee; or
(b) a person applying to be appointed as a trustee; or
(c) a person who is beneficially interested in the trust
property; or
(d) a person in whose favour a power to distribute the trust
property may be exercised.
(3) Also, a custodian trustee may apply for an order mentioned in
subsection (1)(b).
(4) Subsection (2) does not apply if another provision of this Act
provides for the persons who may apply to the court in
relation to the particular matter.
164 Persons who may apply for orders relating to interests in
mortgaged property
(1) This section applies to an application to the court for an order
under this Act in relation to an interest in any property subject
to a mortgage.
(2) The application may be made by—
(a) a person who is beneficially interested in the property;
or
(b) a person who is interested in the amount secured by the
mortgage.
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(3) Subsection (2) does not apply if another provision of this Act
provides for the persons who may apply to the court in
relation to the particular matter.
165 Persons who may apply for orders relating to other
property
(1) This section applies to an application to the court for an order
under this Act in relation to property other than—
(a) trust property; or
(b) property subject to a mortgage.
(2) The application may be made by a person with an interest in
the property.
(3) Subsection (2) does not apply if another provision of this Act
provides for the persons who may apply to the court in
relation to the particular matter.
Division 3 Appointment and removal of
trustees and other office holders
and related matters
166 Power to appoint and remove trustees
(1) This section applies if—
(a) it is expedient for a new trustee of a trust to be appointed
or for a trustee of a trust to be removed; and
(b) it is inexpedient, difficult, impracticable or impossible
for the trustee to be appointed or removed without an
order of the court.
(2) The court may, on application or on its own initiative, make 1
or more of the following orders in relation to the trust—
(a) an order appointing a new trustee to replace a trustee
who has been removed;
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(b) an order appointing a new trustee to be an additional
trustee or because there is no existing trustee;
(c) an order removing a trustee.
(3) Without limiting subsection (2)(a), the appointment of a new
trustee may be made to replace a trustee—
(a) who wishes to be discharged; or
(b) who appears to the court, for any reason, to be
undesirable as a trustee.
(4) If the court could appoint a new trustee under subsection
(2)(a) to replace a trustee, the court may remove the trustee
under subsection (2)(c) without appointing a new trustee, but
only if, on the removal of the trustee, the trust will have at
least 1 trustee.
(5) An order appointing a new trustee or removing a trustee (and
any consequential vesting order or conveyance) has effect to
discharge a former trustee only to the extent the appointment
or removal would have that effect if it were made under a
power for that purpose contained in the trust instrument.
(6) This section does not confer power to appoint or remove a
personal representative.
167 Powers etc. of trustees appointed by court
(1) A person appointed by an order made under section 166(2) as
the trustee of trust property has all the powers, authorities and
discretions of, and may in all matters act as, a person who had
originally been appointed as a trustee of the trust property
under the trust instrument.
(2) Subsection (1) applies in relation to the trustee both before
and after the trust property is vested in the trustee.
168 Power to disqualify persons from appointment as
trustees and remove them as trustees of other trusts
(1) This section applies if the court—
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(a) removes a person as trustee of a trust under section
166(2)(c); and
(b) is satisfied—
(i) the person has committed 1 or more breaches of
trust; and
(ii) the nature and seriousness of the breaches make
the person unfit to act as a trustee.
(2) The court may, by order—
(a) disqualify the person from being appointed as a trustee
of any trust for a stated period; and
(b) if the person is a trustee of another trust when an order is
made under paragraph (a)—remove the person as trustee
of the other trust.
169 Power to appoint and remove particular office holders
(1) This section applies if—
(a) it is expedient for a person to be appointed to, or
removed from, a relevant office in relation to a trust; and
(b) it is inexpedient, difficult, impracticable or impossible
for the person to be appointed or removed without an
order of the court.
(2) The court may, on application or on its own initiative, by
order—
(a) appoint a person to the relevant office; or
(b) remove a person from the relevant office; or
(c) remove a person from the relevant office and appoint
another person to the office.
(3) The application may be made by—
(a) a trustee of the trust; or
(b) the person who holds the relevant office; or
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(c) a person who is beneficially interested in the trust
property; or
(d) a person in whose favour a power to distribute the trust
property may be exercised.
(4) A person may be appointed to, or removed from, the relevant
office for any reason a person may be appointed, or removed,
as a trustee of a trust under section 166.
(5) In this section—
relevant office, in relation to a trust, means an office created
under the trust instrument, other than the office of trustee,
under which a person holding the office—
(a) may exercise a power in relation to the trust or the trust
property; and
(b) must act in a fiduciary capacity in exercising the power.
Division 4 Vesting orders and related matters
170 Application of division
(1) This division applies if—
(a) a new trustee is appointed under the trust instrument,
under this Act or another Act, or otherwise by the court;
or
(b) a trustee—
(i) is replaced or removed, or is discharged under
section 30; or
(ii) is under a legal incapacity; or
(iii) is out of the court’s jurisdiction; or
(iv) can not be found; or
(c) a trustee that is a corporation—
(i) stops carrying on business; or
(ii) becomes a Chapter 5 body corporate; or
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(iii) is deregistered or otherwise ceases to exist; or
(d) a trustee, who is directed in writing to do so by a person
absolutely entitled to the trust property or to the
dividends or income of the trust property, neglects or
refuses, within 28 days after the day the trustee is given
the direction, to—
(i) convey the trust property; or
(ii) receive the dividends or income of the trust
property; or
(iii) sue for or recover the trust property; or
(e) the last continuing trustee of a trust has died and 1 of the
following applies—
(i) there is no personal representative of the last
continuing trustee;
(ii) the personal representative of the last continuing
trustee can not be found;
(iii) it is uncertain who the personal representative of
the last continuing trustee is; or
(f) it is uncertain whether the last trustee of a trust known to
have been entitled to, or possessed of, any trust property
is alive or dead; or
(g) in circumstances where 2 or more trustees were jointly
entitled to, or possessed of, trust property, it is uncertain
who the survivor of the trustees was; or
(h) trust property is vested in a trustee and it appears to the
court to be expedient to make a vesting order.
(2) Also, this division applies if—
(a) a person, who is required to do so under a court order,
neglects or refuses to—
(i) convey any property; or
(ii) receive the dividends or income of any property; or
(iii) sue for or recover any property; or
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(b) a deceased person was entitled to, or possessed of, any
property and the deceased person’s personal
representative is under a legal incapacity; or
(c) any property is subject to a contingent right in an unborn
person, or in unborn persons of a class, who, on coming
into existence, would become entitled to, or possessed
of, the property under a trust; or
(d) in a proceeding, the court—
(i) directs the sale or mortgage, or the release of a
mortgage, of land; or
(ii) makes an order for the specific performance of a
contract concerning land; or
(e) a person entitled to, or possessed of, property by way of
mortgage is under a legal incapacity.
(3) For this section, a trustee is entitled to, or possessed of, trust
property even if—
(a) the trust property is held jointly with another person; or
(b) the trustee is entitled to, or possessed of, the trust
property by way of mortgage or otherwise.
171 Court may make vesting and other orders etc.
(1) The court may, on application or on its own initiative, make an
order (a vesting order) vesting the trust property or other
property in any person in any way and for any estate or
interest that the court directs.
(2) Subsection (1) applies subject to section 172.
(3) As well as, or instead of, making a vesting order in relation to
the trust property or other property, the court may make any
declaration or order, or give any direction, in relation to the
property that it considers appropriate, including—
(a) for the purpose of making a vesting order under
subsection (1), a declaration that a person is a trustee,
within the meaning of this Act, of the property; and
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(b) an order releasing a contingent right or disposing of a
contingent right to any person as the court directs; and
(c) an order appointing a person to convey the property or
release a contingent right.
(4) If the court makes a vesting order in relation to the trust
property or other property, it may also make a declaration, or
give a direction, about the way the right to transfer the
property is to be exercised.
(5) In this section—
contingent right, in relation to property, includes—
(a) a contingent right of an unborn person, or of unborn
persons of a class, who, on coming into existence,
would become entitled to, or possessed of, the property
under a trust; and
(b) the estate or interest in the property that an unborn
person, or unborn persons of a class, mentioned in
paragraph (a) would become entitled to, or possessed of,
on coming into existence.
172 Restrictions on vesting orders in particular
circumstances
(1) If a vesting order is to be made consequential on the
appointment of a new trustee, including on the appointment of
a new trustee to replace a trustee, the trust property must be
vested in the persons who, on the appointment, are the
trustees.
(2) If a vesting order is to be made consequential on the removal
of 1 or more of a number of trustees without being replaced,
or on the discharge of a trustee under section 30, the trust
property must be vested in the continuing trustees alone.
(3) A vesting order may vest shares that are not fully paid up in a
person only if—
(a) the person applies for the order or consents to the order
being made; or
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(b) the court directs that the person’s consent be dispensed
with.
173 Effect of vesting and other orders
(1) A vesting order—
(a) divests the trust property or other property to which the
order relates from the persons in whom the property was
vested immediately before the order was made; and
(b) without any conveyance, transfer or assignment, vests
the property in—
(i) the person named, as trustee or otherwise, in the
order; or
(ii) if more than 1 person is named, as trustee or
otherwise, in the order—the persons named in the
order, as joint tenants.
(2) However, to the extent the divesting and vesting of the trust
property or other property have effect only if notified,
registered or recorded under the requirements of another Act
or of a law of another State or the Commonwealth, the
divesting and vesting of the property are subject to the
requirements of the other Act or law.
(3) If an order is made under section 171(3)(c), a conveyance or
release by the appointed person in accordance with the order
has the same effect as a vesting order.
174 Transfer of property under vesting order
(1) The person in whom the trust property or other property is
vested under a vesting order must, for the purpose of effecting
the notification, registration or recording of the order under a
requirement mentioned in section 173(2)—
(a) produce the order to the relevant registrar or other
person having the function of receiving notification of,
or registering or recording, the vesting; and
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