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(b) the trust property had vested in the existing custodian
trustee under section 48; and
(c) the reference in sections 50(1) and (2) and 54(1) to an
instrument included a reference to an instrument made
before the commencement and still in effect
immediately before the commencement.
(2) In this section—
existing custodian trustee means a corporation—
(a) that was appointed under the repealed Act, section 19(1)
to be custodian trustee of a trust; and
(b) whose appointment as custodian trustee was still in
effect immediately before the commencement.
Division 5 Provisions for investments
242 Investment advice obtained before commencement
(1) This section applies in relation to advice obtained by a trustee
under the repealed Act, section 24(2) if, immediately before
the commencement, the trustee had not—
(a) considered the advice; or
(b) paid the reasonable costs of obtaining the advice out of
trust funds.
(2) Section 72(2) applies in relation to the advice as if the advice
had been obtained under section 72(1).
243 First review of existing trust investments
(1) This section applies in relation to trust investments held by a
trustee immediately before the commencement.
(2) Despite section 73, the first review of the performance of the
trust investments must be conducted—
(a) if the most recent review of the trust investments under
the repealed Act, section 22(3) was completed more
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than 12 months before the commencement, or a review
of the trust investments under that section was never
conducted—within 12 months after the commencement;
or
(b) otherwise—within 12 months after the completion of
the most recent review of the trust investments under the
repealed Act, section 22(3).
244 Dwelling house purchased etc. as residence before
commencement
(1) This section applies if—
(a) before the commencement, a trustee purchased, retained
or otherwise secured a dwelling house for a beneficiary
to use as a residence under the repealed Act, section 28;
and
(b) immediately before the commencement—
(i) the trustee had not yet made the dwelling house
available to the beneficiary to use as a residence; or
(ii) the beneficiary was using the dwelling house as a
residence; or
(iii) if the beneficiary’s use of the dwelling house had
ended—the trustee had retained the dwelling house
or an interest or rights in the dwelling house under
the repealed Act, section 28(4).
(2) Section 75 applies in relation to the dwelling house as if—
(a) the dwelling house were a residence bought, retained or
otherwise secured by the trustee under section 75(1);
and
(b) any conditions on which the dwelling house was being
made available to the beneficiary immediately before
the commencement had been imposed under section
75(2) and (3).
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245 Liability for particular loans made by trustee before
commencement
Sections 78 and 79 apply in relation to a loan of trust funds on
the security of property whether the loan was made before or
after the commencement.
246 Proceedings against trustees for breach of trust in
relation to exercise of investment power
(1) Section 80 applies in relation to a proceeding for a breach of
trust in relation to the exercise of an investment power—
(a) whether the investment power was exercised before or
after the commencement; but
(b) only if the proceeding is started after the
commencement.
(2) For a proceeding started after the commencement in relation
to an investment power exercised before the commencement,
section 80 applies as if—
(a) the section did not include section 80(2)(b); and
(b) the reference in section 80(2)(c) to section 71 included a
reference to the repealed Act, section 24.
(3) Also, for subsections (1) and (2) and section 80 as applied by
subsections (1) and (2), a reference to an investment power is
taken to include a reference to a power conferred on a trustee
under the repealed Act, part 3.
(4) The repealed Act, section 30B continues to apply in relation
to a proceeding mentioned in that section and started before
the commencement as if this Act had not been enacted.
247 Set off of gains and losses in proceedings for breach of
trust
(1) Section 81 applies in relation to a proceeding for a breach of
trust in relation to an investment—
(a) whether the investment was made before or after the
commencement; but
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(b) only if the proceeding is started after the
commencement.
(2) The repealed Act, section 30C continues to apply in relation
to a proceeding mentioned in the repealed Act, section 30C(1)
and started before the commencement as if this Act had not
been enacted.
248 Particular references in documents to authorised
investments etc.
(1) Subsection (2) applies if a provision in a document, whether
or not the document creates a trust, authorises or requires a
person to invest an amount in the investments authorised by
the repealed Act as in force immediately before—
(a) the commencement of the Trusts (Investments)
Amendment Act 1999; or
(b) the repeal of the repealed Act.
(2) The provision is to be read as if it authorised or required the
person to invest the amount according to the provisions of part
6 in relation to the investment of trust funds.
(3) Subsection (4) applies to a reference in a document to—
(a) an authorised investment under the repealed Trustees
and Executors Act 1897, section 4; or
(b) an authorised investment under the repealed Act as in
force immediately before—
(i) the commencement of the Trusts (Investments)
Amendment Act 1999; or
(ii) the repeal of the repealed Act.
(4) The reference may, if the context permits, be taken to be a
reference to an investment that—
(a) could be made by a trustee exercising an investment
power under part 6; or
(b) is authorised by an order made under section 179; or
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(c) is authorised by another Act for the investment of trust
funds or the general law.
Division 6 Provisions for general powers of
trustees
249 Application of general powers in relation to existing trust
property
(1) To remove any doubt, it is declared that the powers conferred
on a trustee in relation to trust property under section 82 apply
in relation to trust property held by a trustee immediately
before the commencement.
(2) Without limiting subsection (1), the powers mentioned in
section 82(2)(b) and (c) to renew, extend or vary a lease or
mortgage of trust property apply in relation to a lease or
mortgage in existence immediately before the
commencement.
250 Power to apportion particular expenditure and payments
made before commencement
(1) This section applies if—
(a) before the commencement, a trustee expended money or
made a payment under the repealed Act, section
33(1)(a) to (f); and
(b) immediately before the commencement, the trustee had
not apportioned the expenditure or payment under the
repealed Act, section 33(1)(g).
(2) Section 86 applies to the trustee as if the reference in section
86(1) to expenditure made under section 85 included a
reference to the expenditure or payment made under the
repealed Act, section 33(1)(a) to (f).
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251 Existing notices of appropriation
(1) This section applies if—
(a) before the commencement, notice of an appropriation of
trust property was given to 1 or more persons under the
repealed Act, section 33(1)(l)(ii); and
(b) immediately before the commencement—
(i) the appropriation had not been made; or
(ii) if an application to vary the appropriation had been
made—the application had not been decided.
(2) The repealed Act, section 33(1)(l) and (2) to (4) continues to
apply in relation to the appropriation as if this Act had not
been enacted.
252 Appropriation before commencement to pay annuity or
periodic payment
(1) This section applies if, under the repealed Act, section
33(1)(m), a trustee set aside and appropriated out of the trust
property and invested a sum to pay an annuity or other
periodic payment.
(2) The repealed Act, section 33(1)(m)(i) continues to apply to
the annuitant as if this Act had not been enacted.
(3) Also, if immediately before the commencement, the trustee
had not distributed the residue of the trust property and the
income from the residue—
(a) the repealed Act, section 33(1)(m)(ii) continues to apply
to the trustee as if this Act had not been enacted; and
(b) if the residue of the trust property is or includes land
subject to the provisions of the Land Title Act 1994 or
any other Act—the repealed Act, section 33(5)
continues to apply as if this Act had not been enacted.
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253 Distribution of land after notice given to registrar or other
person before commencement
(1) This section applies if—
(a) before the commencement, a trustee gave the relevant
official notice under the repealed Act, section 33(5) that
land subject to the provisions of the Land Title Act 1994
or another Act was distributable because of an
appropriation mentioned in that subsection; and
(b) immediately before the commencement, the relevant
official had not registered or recorded the dealing
effecting the distribution of the land.
(2) The repealed Act, section 33(5) continues to apply in relation
to the relevant official as if this Act had not been enacted.
(3) In this section—
relevant official, in relation to land subject to the provisions
of the Land Title Act 1994 or another Act, means the registrar
or other person, if any, having the duty or function of
registering or recording dealings under that Act.
254 Conveyance of property sold before commencement on
terms of deferred payment
(1) This section applies if—
(a) before the commencement, a trustee sold property on
terms of deferred payment under the repealed Act,
section 37; and
(b) immediately before the commencement, the balance of
the purchase money and any interest payable on the
balance of the purchase money under that section had
not been paid.
(2) The repealed Act, section 37 continues to apply in relation to
the sale as if this Act had not been enacted.
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255 Delegation of matter by power of attorney in operation
before commencement
(1) This section applies if, immediately before the
commencement, a power of attorney delegating a matter
under the repealed Act, section 56(1) was in operation under
section 56(5) of that Act.
(2) Subject to subsection (3), the repealed Act, section 56
continues to apply in relation to the power of attorney as if
this Act had not been enacted.
(3) The repealed Act, section 56(2) continues to apply only until
the earliest of the following to happen—
(a) the power of attorney is revoked under the repealed Act,
section 56(5);
(b) the power of attorney, to the extent it provides for the
delegation, otherwise ends;
(c) the beginning of the day that is 1 year after the day this
section commences.
256 Existing appointments of agents
(1) This section applies if, immediately before the
commencement, the appointment of an agent under the
repealed Act, section 54 was still in effect.
(2) The appointment of the agent is taken to have been made
under section 107 on the same terms and conditions that
applied to the agent before the commencement.
(3) Despite section 107(5), subsection (2) applies whether or not
the agent is a beneficiary of the trust to which the appointment
relates.
257 Application of income by trustee-mortgagee in
possession
(1) Part 7, division 6 applies only in relation to a trustee who
becomes mortgagee in possession of land in the circumstances
mentioned in section 110(1) after the commencement.
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(2) If a trustee became mortgagee in possession of mortgaged
land before the commencement in the circumstances
mentioned in the repealed Act, section 42(1), the repealed
Act, section 42 continues to apply as if this Act had not been
enacted.
258 Application of insurance money
(1) Section 115 applies in relation to an amount received by a
trustee under an insurance policy—
(a) whether the policy was taken out before or after the
commencement; but
(b) only if the amount is received after the commencement.
(2) The repealed Act, section 48 continues to apply in relation to
an amount received by a trustee under an insurance policy
before the commencement as if this Act had not been enacted.
259 Payment for deposit of documents for safe custody
before commencement
(1) This section applies if, immediately before the
commencement, any sum payable in respect of the deposit by
a trustee of a document under the repealed Act, section 49 had
not been paid.
(2) The repealed Act, section 49 continues to apply in relation to
the payment of the sum as if this Act had not been enacted.
260 Valuations if required consultation undertaken before
commencement
(1) This section applies if—
(a) before the commencement, a trustee, for the purpose of
ascertaining and fixing the value of any property under
the repealed Act, section 51, consulted a duly qualified
person as to the value of the property; and
(b) immediately before the commencement, the trustee had
not fixed the value of the property.
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(2) Section 117 applies to the trustee as if the consultation
mentioned in subsection (1)(a) were consultation undertaken
under section 117(3)(a) about the value of the property.
261 Audit conducted before commencement
(1) This section applies if—
(a) before the commencement, the accounts of trust
property were examined or audited under the repealed
Act, section 52(1); and
(b) immediately before the commencement, the costs of the
examination or audit had not been charged against the
capital or income of the trust property.
(2) The repealed Act, section 52(2) and (3) continues to apply in
relation to the costs of the examination or audit as if this Act
had not been enacted.
262 Costs etc. of inquiries about beneficiaries
(1) Section 120 applies in relation to the costs, expenses and
charges incurred by a trustee in making inquiries to ascertain
the existence or whereabouts of a beneficiary of the trust,
whether the costs, expenses and charges were incurred before
or after the commencement.
(2) However, for a trust created before the commencement,
section 120 applies as if the reference in section 120(3) to an
express contrary intention in the trust instrument were a
reference to a contrary intention in the trust instrument.
263 Effect of conversion of land or personal property before
commencement under statutory power
A reference in section 122 to an exercise of power under this
Act is taken to include a reference to an exercise of power
under the repealed Act.
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