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(b) do any other act that is required by the relevant registrar
or other person for that purpose.
(2) The vesting order, or the notification, registration or recording
of the order, does not have effect as a breach of covenant or
condition, or give rise to the forfeiture, of any lease or
agreement for lease or other property.
(3) If the consent of a person is needed to the conveyance,
transfer or assignment of any property—
(a) the vesting of the property under a vesting order is
subject to the consent, unless the order otherwise
provides; but
(b) the consent may be obtained after the making of the
vesting order by the persons named in the order.
175 Powers etc. of person named in vesting order as trustee
(1) This section applies if a vesting order vests property in a
person as trustee.
(2) The person named in the vesting order as trustee 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.
(3) However, the court may—
(a) under the vesting order, limit the trustee’s powers as the
court considers appropriate; or
(b) under section 179 or 183, enlarge the trustee’s powers as
the court considers appropriate.
176 Circumstances relating to validity of vesting and other
orders etc.
(1) This section applies in relation to a vesting order or any other
order, declaration or direction made, or given, under section
171.
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(2) The fact that the order, declaration or direction is founded, or
purports to be founded, on an allegation of the existence of a
circumstance mentioned in section 170(1) or (2) is conclusive
evidence of the circumstance alleged in any court on any
question about the validity of the order, declaration or
direction.
(3) However, if the order, declaration or direction has been
improperly obtained, nothing in this Act prevents the court
from—
(a) in the case of a vesting order—directing a reconveyance
of the property the subject of the order; or
(b) making an order in relation to the payment of costs
occasioned by the improper obtaining of the order,
declaration or direction; or
(c) making a further order or declaration, or giving a further
direction, under section 171.
Division 5 Orders in relation to property and
claims of children
177 Court may make orders in relation to property or claim of
child
(1) If a child is beneficially entitled to property of which there is
no trustee, the court may, on application by the child’s
litigation guardian, make an order, on the terms the court
considers appropriate, appointing the litigation guardian or
another person the court considers appropriate—
(a) to deal with the property; or
(b) to exercise in relation to the property the powers
conferred on a trustee under this Act.
(2) If a child has a claim to property, the court may, on application
by the child’s litigation guardian, make an order appointing
the litigation guardian or another person the court considers
appropriate to settle or compromise the claim.
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(3) However, subsection (2) does not apply if the settlement or
compromise may be sanctioned under the Public Trustee Act
1978, section 59 by a court or the public trustee.
(4) The court must not make an order under subsection (1) or (2)
unless it appears to the court that the order is for the benefit
of—
(a) the child; or
(b) the child and another person.
(5) An act done under an order made under this section is binding
on the child.
(6) In this section—
deal, with property, includes sell, convey, lease, mortgage,
charge and sue for and recover the property.
Division 6 Conferral of additional management
powers
178 Definition for division
In this division—
management power, in relation to a trust, means any power
for the management or administration of the trust or the trust
property, including, for example—
(a) the power to surrender, release or otherwise dispose of
the trust property; and
(b) the power to retain the trust property; and
(c) the power to buy, invest in or acquire trust property or
engage in another transaction for the trust; and
(d) the power to expend an amount out of trust funds.
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179 Court may confer additional management powers
(1) This section applies in relation to a trust if the court is
satisfied—
(a) the exercise of a particular management power—
(i) would be expedient in the management or
administration of the trust property; or
(ii) would be in the best interests of the persons, or the
majority of the persons, beneficially interested in
the trust property; and
(b) the management power can not be exercised because—
(i) it is inexpedient, difficult or impracticable to
exercise the power without a court order; or
(ii) the trustee does not have the management power
under this Act, the trust instrument or otherwise.
(2) For subsection (1)(b)(ii), it does not matter that the trustee
does not have the particular management power because—
(a) this Act allows the power, which would otherwise be
conferred on the trustee under this Act, to be excluded
or modified under the trust instrument; and
(b) the trust instrument excludes or modifies the power.
Note—
See section 82(3) in relation to the powers that may be excluded or
modified under the trust instrument.
(3) The court may, by order, confer the management power on the
trustee, either generally or in a particular matter, and on the
terms and subject to any conditions the court considers
appropriate.
(4) Without limiting subsection (3), the court may direct—
(a) how an amount authorised to be expended is to be paid;
and
(b) how the costs of any transaction are to be borne; and
(c) the extent to which the amount or the costs are to be
apportioned between capital and income.
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180 Court may revoke or vary order
(1) The court may, by further order, revoke or vary an order made
under section 179.
(2) The revocation or variation of an order made under section
179 does not affect any act or thing done in reliance on the
order before the person doing the act or thing became aware
of the application to the court to revoke or vary the order.
181 Persons who may apply for order
An application for an order under section 179 or 180 in
relation to a trust may be made by—
(a) any trustee of the trust; or
(b) any person beneficially interested in the trust property.
Division 7 Variations of trusts
182 Meaning of protective trust
(1) For this division, a trust is a protective trust if, under the trust,
income is, without prejudice to any prior interest—
(a) held on trust for the benefit of a person (the principal
beneficiary)—
(i) for the period of the principal beneficiary’s life or a
lesser period (in either case the trust period); or
(ii) until the trust (the primary trust) sooner fails or
determines because of an intervening event; and
(b) if the primary trust fails or determines during the trust
period—held on trust for the remainder of the trust
period to be applied, as the trustee considers
appropriate, for the maintenance, education or
advancement (including past maintenance or education)
of 1 or more of the following persons—
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(i) the principal beneficiary and the principal
beneficiary’s spouse or issue;
(ii) if the principal beneficiary has no spouse or
issue—the principal beneficiary and the persons
who would, if the principal beneficiary were dead,
be entitled to the trust property or the income of
the trust property.
(2) For this division, a trust is also a protective trust if it has a
similar effect to a trust mentioned in subsection (1).
(3) In this section—
income includes an annuity and any other periodic payment of
income.
intervening event, in relation to a primary trust, means an
event provided for under the trust instrument that, if it
happens, results in—
(a) the principal beneficiary of the primary trust being
deprived of the right to receive the income, or part of the
income, of the trust; and
(b) the consequent failure or determination of the primary
trust.
183 Power of court to authorise variations of trust
(1) The court may make an order under this section approving an
arrangement in relation to a trust for any of the following
persons (each a restricted beneficiary)—
(a) a person under a legal incapacity who has an interest
under the trust, whether directly or indirectly and
whether vested or contingent;
(b) a person (whether ascertained or not) who may become
entitled, directly or indirectly, to an interest under the
trust at a future date or on the happening of a future
event (each later in time than the date of an application
to the court under this section) because the person
becomes—
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(i) a person of a particular description; or
(ii) a member of a particular class of persons;
(c) an unborn person;
(d) a person who, if a protective trust failed or determined,
would be a member of the class of persons mentioned in
section 182(1)(b)(i) or (ii).
(2) An arrangement may—
(a) vary or revoke all or any of the trusts; or
(b) enlarge the powers of the trustees to manage or
administer any of the trust property.
(3) An arrangement may be approved only if carrying out the
arrangement would be for the benefit of the restricted
beneficiary.
(4) However, subsection (3) does not apply if the restricted
beneficiary is—
(a) an unascertained person whose entitlement is dependent
on a future event that the court is satisfied is unlikely to
happen; or
(b) a person mentioned in subsection (1)(d).
(5) An order approving an arrangement may be made regardless
of—
(a) who has proposed the arrangement; or
(b) whether there is any other person beneficially interested
in the trust property who is capable of assenting to the
arrangement.
(6) Notice of an application to the court for an order under this
section must be given to all persons as the court directs.
(7) This section does not limit the court’s powers under division
6.
(8) This section does not apply in relation to a trust affecting
property settled by an Act.
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Division 8 Applications for directions
184 Court may give directions about particular matters
(1) The court may, on application by a trustee, give the directions
it considers appropriate about—
(a) the trust property; or
(b) the management or administration of the trust property;
or
(c) the exercise of any power or discretion vested in the
trustee.
(2) An application for directions under subsection (1) must be
served on each person having an interest in the application, or
on any of them as the court considers expedient.
185 Protection of trustee acting under court directions
(1) If a trustee acts in accordance with a direction of the court
given under section 184, the trustee is taken, in relation to the
trustee’s own liability, to have discharged the trustee’s duty as
trustee in the matter the subject of the direction.
(2) Subsection (1) applies even if the direction is later varied or
set aside.
(3) However, this section does not protect the trustee from
liability for an act done under the direction if, in obtaining the
direction, or in agreeing (either expressly or impliedly) with
the court in making the order giving the direction, the
trustee—
(a) commits a fraud; or
(b) wilfully conceals a material matter; or
(c) misrepresents a material matter.
(4) In this section—
varied or set aside includes invalidated, overruled and
declared to be of no effect.
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Division 9 Reviews of decisions and directions
for apprehended decisions
186 Definitions for division
In this division—
apprehended decision see section 187(1)(b)(ii).
relevant decision see section 187(1)(b)(i).
relevant power, in relation to a trustee or another person,
means a power in relation to trust property or a trust that—
(a) is conferred on the trustee or other person under this Act
or otherwise; and
(b) must be exercised in a fiduciary capacity.
187 Application for review or directions
(1) This section applies if—
(a) a person has—
(i) an interest, whether direct or indirect or vested or
contingent, in trust property; or
(ii) a right of proper administration in relation to a
trust; and
(b) the person—
(i) is aggrieved by an act, omission or decision (each a
relevant decision) of a trustee or another person in
the exercise of a relevant power; or
(ii) has reasonable grounds to apprehend an act,
omission or decision (each an apprehended
decision) of a trustee or another person, in the
exercise of a relevant power, by which the person
will be aggrieved.
(2) The person may apply to the court, on a ground mentioned in
section 188(1)(a) or (b), to—
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(a) review the relevant decision; or
(b) give directions in relation to the apprehended decision.
188 Grounds for review or directions
(1) The court may review the relevant decision, or give directions
in relation to the apprehended decision, on the ground—
(a) the relevant decision or apprehended decision was not,
or would not be, an appropriate exercise of the relevant
power by the trustee or other person; or
(b) without limiting paragraph (a), the relevant power was,
or would be, exercised by the trustee or other person—
(i) in bad faith; or
(ii) without real or genuine consideration; or
(iii) contrary to the purposes of the trust.
(2) Also, the court may require the trustee or other person to
appear before it to substantiate and uphold the grounds of the
relevant decision or apprehended decision.
189 Orders and directions
(1) The court may, on the application, make the orders and give
the directions it considers appropriate, including an order
about the costs of the application.
(2) However, an order must not—
(a) disturb a distribution of the trust property, made without
breach of trust, before the trustee or other person
became aware of the making of the application to the
court; or
(b) affect a right acquired by a person in good faith and for
valuable consideration.
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Division 10 Other matters
190 Court may decide proceeding in absence of trustee
(1) This section applies if—
(a) a person is, as trustee, a defendant in a proceeding; and
(b) the court is satisfied—
(i) a diligent search has been made for the person; and
(ii) the person can not be found.
(2) The court may—
(a) decide the proceeding in the absence of service on the
person; and
(b) give judgment against the person, as trustee, as if the
person had been properly served.
(3) Subject to section 191, judgment given against the person, as
trustee, does not affect any interest the person may have in the
matters in question in the proceeding in another capacity.
191 Court may appoint representative or make orders in
absence of party or interested person
(1) This section applies if, at the time of the hearing of a
proceeding in relation to a trust, a party to the proceeding or
an interested person in relation to the proceeding—
(a) is not within the jurisdiction; or
(b) is under a legal incapacity; or
(c) can not be found; or
(d) is unborn; or
(e) is not capable of being identified or ascertained.
(2) The court may—
(a) make an order appointing a person to represent the party
or interested person; or
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