Definitions
82 Definitions
In this Act (except as to Part IV), unless the context otherwise requires:
The expression bank means an ADI that is permitted under the Banking Act 1959 of the Commonwealth to assume or use:
the word bank, banker or banking;
or
any other word (whether or not in English) that is of like import to a word referred to in paragraph (a).
The expression contingent right as applied to land, includes a contingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of the interest or possibility is or is not ascertained; also a right of entry, whether immediate or future, and whether vested or contingent.
The expressions convey and conveyance applied to any person include the execution by that person of every necessary or suitable transfer or assurance for conveying, assigning, appointing, surrendering, or otherwise transferring or disposing of land to which he is entitled or of which he is seised or possessed, or wherein he is entitled to a contingent right, either for his whole estate or for any less estate, together with the performance of all formalities or acts required by law under the Land Title Act 2000 or otherwise for the validity or completion of the conveyance, including the acts to be performed by married women and tenants in tail for perfect conveyance and assurance under the Acts for the time being in force in that behalf.
The expression devisee includes the heir of a devisee and the devisee of an heir, and any person who may claim right by devolution of title of a similar description.
The expression disposition includes:
the conferring or exercising of a power of appointment or any other power or authority to dispose of property; and
an alienation of property.
The expression instrument includes Act of Parliament.
The expression land includes incorporeal as well as corporeal hereditaments, and any estate or interest therein, and also an undivided share of land.
The expression lunatic means any person who shall have been found to be a lunatic upon inquiry by the Supreme Court, or upon a commission of inquiry issuing out of the Supreme Court in the nature of a writ of de lunatico inquirendo.
The expressions mortgage and mortgagee include and relate to every estate and interest regarded in equity as merely a security for money, and every person deriving title under the original mortgagee.
The expressions pay and payment" as applied in relation to stocks and securities, and in connection with the expression into Court, include the deposit or transfer of the same in or into Court.
The expression person of unsound mind means any person, not an infant who, not having been found to be a lunatic, shall be incapable from infirmity of mind of managing his own affairs.
The expression possessed applies to receipt of income of and to any vested estate less than a life estate, legal or equitable, in possession or in expectancy, in, any land.
The expression property includes real and personal property, and any estate and interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest, whether in possession or not.
The expression representative means an executor or administrator, and includes the Public Trustee, where he or she is administering the estate of a deceased person under section 35 of the
Public Trustee Act 1979 in cases where the Supreme Court shall have authorized him to administer the estate of a deceased person.
The expression securities includes stocks, funds, and shares.
The expression stock includes fully paid up shares, and, so far as relates to vesting orders made by the Court under this
Act, includes any fund, annuity, or security transferable in books kept by any company or society, or by instrument of transfer either alone or accompanied by other formalities, and any share or interest therein.
The expression Supreme Court includes a Judge of the
Supreme Court.
The expression transfer in relation to stock, includes the performance and execution of every deed, power of attorney, act, and thing on the part of the transferor to effect and complete the title in the transferee.
The expression trust does not include the duties incident to an estate conveyed by way of mortgage, or to the estate or interest of a mortgagee under the Land Title Act 2000, but with these exceptions the expressions trust and trustee include implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of representative of a deceased person: and the expression "trustee" includes a representative of a deceased person.
valuer has the same meaning as in the Valuation of
Land Act 1963.
Schedules
First Schedule
No. of Act |
Title |
Extent of Repeal |
No. 7 of 1855-6 |
The Trustee Act, 1855 |
Sections 2 to 47 inclusive |
No. 6 of 1860 |
The Property Act of 1860 |
Sections 24 to 30 inclusive |
No. 7 of 1862 |
An Act to give to Trustees, Mortgagees, and others, certain powers now commonly inserted in Settlements, Mortgages, and Wills |
Sections 1 to 9 inclusive, sections 23 to 31 inclusive |
No. 14 of 1866-7 |
The Limitations of Suits and Actions Act, 1866 |
Section 26 |
No. 523 of 1891 |
The Trustees Appointment Act 1891 |
The whole |
Second Schedule
South Australian Government Securities
No. [Royal Arms] No.
(Authorized by "The Trustee Act, 1893.")
I, the Treasurer of the Province of South Australia, in consideration of the sum of dollars, paid to me for public purposes by do hereby bind myself to pay to the holder for the time being of this bond the sum of dollars and interest thereon at the rate of 4% per annum; such interest to be payable on 1 April and 1 October in every year, and the principal to be paid on the first day of , in the year one thousand nine hundred and .
Sealed with my seal. Dated the day of one thousand eight hundred and .
Signed, sealed, and delivered in )
the presence of )
[Bond transferable by delivery .]
Third Schedule
Appointment of New Trustees
Pursuant to Part IV of "The Trustee Act, 1893," we [here set out names, addresses, and occupations], being persons entitled to exercise and exercising the power of appointing new trustees of the trust hereinafter referred to, do hereby appoint [here set out names, addresses and occupations of new trustees], to be new trustees (here if necessary insert jointly with) [here insert names, addresses, and occupations of the old continuing trustees] of the trust constituted under [here set out shortly particulars of the instrument creating the trust, including date, and name of person by whom trust was created], and we the said [here insert names of new trustees] do hereby accept the said trusteeship.
Dated this day of ,
18 .
[To be signed by the persons exercising the power
of appointment, and by the new trustees, and to be attested.]
The Trustee Act, 1907
An Act to amend "The Trustee Act, 1893."
1 Short title and application
This Act may be cited as "The Trustee Act, 1907," and shall be incorporated with "The Trustee Act, 1893," and the
2 Acts may be cited together as "The Trustee Acts, 1893 and
1907."
This Act, except sections 2, 6, and 7, applies only to trusts created after the passing of this Act.
Investments
2 Power to take mortgage for part purchase-money
A trustee on the sale of trust property may leave unpaid purchase-money thereof invested upon the security of the property sold to the extent to which, were the trustee not the vendor thereof, such property would be a proper security for the investment of the trust funds.
Various powers and liabilities
3 Trustee's power of delegation
A trustee who, for the time being, is or is about to be absent from South Australia may, if not expressly prohibited by the instrument creating the trust, with the consent of his co-trustee (if any), by power of attorney, under seal, delegate, for a term not exceeding 12 calendar months from the date of such power of attorney, to any person or persons residing in South Australia, all or any of the powers, authorities, and discretions vested in such trustee.
Every deed, act, matter, and thing executed, done, and performed by such attorney or attorneys shall be as valid and effectual as if executed, done, and performed by the trustee.
A trustee appointing any attorney or attorneys as aforesaid shall be liable for the acts and defaults of every such attorney as if they were his own acts and defaults.
Nothing in this section shall be deemed to limit or affect any power of appointing a new trustee in the place of a trustee absent from South Australia, or the power of the Supreme Court to make any order by reason of such absence.
4 Revocation of power of attorney not effectual as against person in ignorance
No revocation of any such power of attorney, including any revocation or avoidance by operation of law, shall be effectual as against any person dealing in good faith with such attorney in ignorance of such revocation.
5 Trustees bank account
Trustees, unless prohibited by the instrument creating the trust, and, if expressly authorized by the power of attorney so to do, their attorneys, appointed under section 3 of this Act, may, by writing signed by them, authorize any bank to honor cheques, bills, promissory notes, and drafts drawn upon or made payable out of the banking account of the trust by any one or more of such trustees or attorneys, and to honor the indorsement of any one or more of such trustees or attorneys upon any cheque, bill, promissory note, or draft payable to the order of the trustees, and also to pay to any one or more of such trustees or attorneys, whether before or after maturity, all or any portion of any moneys deposited on fixed deposit.
Every trustee who, in person or by attorney, gives or joins in giving any such authority shall be liable for the acts and defaults of every trustee or attorney acting thereunder as if they were his own acts and defaults.
No revocation of any such authority, including any revocation or avoidance by operation of law, shall be effectual as against any banker acting or paying money in good faith under or in pursuance of such authority in ignorance of such revocation.
6 Trustee may sell land with consent of Court
With the consent of the Court, and notwithstanding anything contained in Act No. 10 of 1847, or any reservation or proviso contained in the land grants of land granted for ecclesiastical purposes to be held in conformity with the said Act, the trustees in whom the legal estate of such land shall be vested shall have power to sell the land.
Powers of the Court
7 Power for Court to authorize purchase of trust property by trustee
Where there is a trust for sale or power of sale the Supreme Court may, on the application, ex parte or otherwise, of a trustee, or of a beneficiary interested in the trust property, or of the
Public Trustee, or a next friend on behalf of such a beneficiary not sui juris, upon being satisfied that such sale will be advantageous to the beneficiaries, authorize a sale of trust property by a trustee to himself, unless such sale be expressly prohibited by the instrument creating the trust.
8 Accounts to be filed by trustees when required
Every executor and trustee shall, if so required by and at the cost of any beneficiary requiring the same, file annually in the Supreme
Court an account of his administration of the testator's estate; and the Public Trustee shall, on the request of a majority or of half of the beneficiaries and at their cost, audit the accounts so filed.
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