Dormant Funds Act 1942

This Act may be cited as the Dormant Funds Act 1942.

This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette.

In this Act unless the context or subject matter otherwise indicates or requires—

Charitable purpose includes any benevolent or philanthropic or patriotic purpose.

Commissioner means the Commissioner of Dormant Funds.

Dormant fund means a fund determined under section 5A to be a dormant fund.

Fund means any property, real or personal, which has been donated to or collected or otherwise acquired by trustees for any charitable purpose or any purpose of a public character, and, in the case of a fund that has been partly used for the purposes for which it was donated, collected or otherwise acquired, means the residue of the fund.

Prescribed means prescribed by this Act or by regulations made under this Act.

Purpose of a public character means any purpose (not being a charitable purpose) which is directed to the benefit of the public or a section of the public; and without prejudice to the generality of the foregoing provisions of this definition includes any of the following purposes—

the provision of any war memorial or other public memorial whether such provision is to be made by the erection, extension or alteration of any structure or building or by the furnishing of moneys or in any other way whatsoever,

the granting of relief or assistance or comforts to persons (whether resident in New South Wales or elsewhere) adversely affected by circumstances arising out of the existence of a state of war or arising in any other way whatsoever,

the provision of parks, gardens and the like,

the establishment, provision, conducting or carrying on of an institution as defined in clause 20 of Schedule 7 to the Crown Land Management Act 2016.

Tribunal means the Civil and Administrative Tribunal.

Notes included in this Act do not form part of this Act.

–(6) (Repealed)

Nothing in this Act shall affect the operation of the Unclaimed Money Act 1995.

(Repealed)

There shall be a Commissioner of Dormant Funds who shall have and may exercise and discharge all the powers, authorities, duties and functions conferred and imposed on the Commissioner by or under this Act.

The person for the time being holding the office of Chief Executive Officer of the NSW Trustee and Guardian shall be the Commissioner of Dormant Funds.

The Commissioner may determine a fund to be a dormant fund if satisfied that—

for at least the immediately preceding 6 years, the trustees have not used the fund genuinely for the purposes for which it was donated, collected or otherwise acquired, or

it is not practicable to use the fund for those purposes, or

it is unlikely that those purposes will be achieved within a reasonable time, or

the trusts, or the objects of the trusts or the purposes, for which the fund was donated, collected or otherwise acquired are uncertain or cannot be ascertained, or

if the fund is held for an institution within the meaning of clause 20 of Schedule 7 to the Crown Land Management Act 2016—the institution is not functioning as such an institution.

A fund is not to be regarded as having been used as referred to in paragraph (a) merely because the fund is invested or merely because the proceeds of investment have been placed on deposit or have been added to the fund.

The Commissioner may revoke a determination under this section if, after making the determination, the Commissioner decides that the determination was based on inadequate, misleading or incorrect information. However, such a determination is not revocable after the Commissioner has made an order under this Act in respect of the fund to which the determination relates.

The revocation of a determination under this section does not prevent the Commissioner from making a further determination under this section with respect to the fund.

Subject to any appeal under section 15B, a determination or decision of the Commissioner under this section cannot for any reason be challenged before, or be reviewed, quashed or called into question by, any court. No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of any determination or decision of the Commissioner under this section.

The Commissioner may require the trustees or other persons by whom any fund is held or in whom any fund is vested to furnish or cause to be furnished within the time specified in the requirement a return setting forth such particulars relating to the fund or to the trustees of the fund as may be specified in the requirement.

Any such requirement may be made in relation to all funds or funds of a specified class or description or all funds other than funds of a specified class or description.

Any such requirement may be made by notice published in one or more newspapers, or may be made by notice in writing served personally or by post on the trustee or person concerned.

Any trustee or person who, without reasonable cause, neglects or fails to furnish such return within the time so specified or who furnishes a return which is false or misleading in any material particular shall be guilty of an offence and shall be liable to a penalty not exceeding 0.5 penalty unit.

The Commissioner may require written accounts and statements and answers to inquiries relating to any dormant fund to be rendered or made to the Commissioner by any of the following persons, that is to say—

the trustees or other persons by whom the dormant fund is held or in whom the dormant fund is vested,

agents of any such trustees or persons,

depositories of any funds, securities or moneys comprising or forming part of the dormant fund,

persons having the possession or control of any documents concerning or relating to the dormant fund or the trusts thereof or the purposes for which the dormant fund was to be utilised or applied.

The Commissioner may require the trustees or persons rendering or making any such account, statement or answer to verify the same by statutory declaration.

Nothing in this section shall extend to give the Commissioner any power of requiring from any person holding or claiming to hold any property adversely to the trustees of the dormant fund or free or discharged from the trusts attaching to the dormant fund, any information or the production of any deed or document whatsoever in relation to the property so held or claimed adversely or any trusts alleged to affect the same.

The Commissioner may require all or any such trustees and persons as are referred to in section 7 to attend before the Commissioner, or before an officer appointed by the Commissioner for the purpose, at such times and places as may reasonably be appointed, for the purpose of being examined in relation to the dormant fund, the trusts thereof, the purposes for which the dormant fund was to be utilised or applied, and to produce on such examination all books and documents in their custody and control relating to the dormant fund.

For the purposes of any examination under this section the Commissioner or the officer appointed to conduct the examination shall have the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923, and shall be deemed to be a sole commissioner within the meaning of that Division.

The provisions of the Royal Commissions Act 1923, with the exception of section 13 and Division 2 of Part 2, shall, mutatis mutandis, apply to the examination and to any witness or person summoned by or appearing before the Commissioner or the officer conducting the examination.

Any requirement of the Commissioner under section 7 or section 8 may be made by notice in writing served personally or by post on the trustee or person concerned.

Any trustee or person who refuses or neglects or fails to comply with any requirement of the Commissioner under section 7 or section 8 within the time specified in the notice shall be guilty of an offence and shall be liable to a penalty not exceeding 2 penalty units.

The Commissioner shall as soon as practicable after the Commissioner has completed his or her investigations in relation to any dormant fund issue a certificate as to the value of the property comprised in the dormant fund.

Such certificate shall be filed in the office of the Commissioner and shall be available for inspection by any person interested in the dormant fund or in the trusts thereof or in the purposes for which the dormant fund was to be utilised or applied.

A certificate of the Commissioner issued under this section shall, for all purposes of this Act, be conclusive evidence of the value of the property comprised in the dormant fund.

Where the Commissioner considers it reasonable so to do the Commissioner may formulate proposals for the utilisation or application of any dormant fund.

Such proposals shall be in the form of a draft order—

authorising the trustees of the dormant fund to apply the same or the income thereof or the proceeds of the realisation thereof for some or one of the trusts thereof or of the purposes for which the same was to be utilised or applied exclusively of the other or others of such trusts or purposes, or

for the establishment of a scheme for the administration of the dormant fund, the appointment of trustees for that purpose and the vesting of the dormant fund in such trustees, or

directing the transfer of the dormant fund to such trustees as may be specified in the order and authorising such trustees to apply the dormant fund or the income thereof or the proceeds of the realisation thereof as if it were part of the trust property of which such trustees are the trustees.

The NSW Trustee and Guardian and any existing trustee of the dormant fund shall be eligible for appointment as trustee under paragraph (b).

Before formulating proposals under this section the Commissioner shall give due consideration to any representations or suggestions made by the trustees or other persons interested in the dormant fund, or in the trusts thereof or in the purposes for which the dormant fund was to be utilised or applied.