Trustee Companies Management Act 1975

1: Short Title and commencement
1: This Act may be cited as the Trustee Companies Management Act 1975.
2: This Act shall be deemed to have come into force at 7.30 pm on 14 August 1975.
2: Interpretation
1: In this Act, unless the context otherwise requires,— associated company board of directors board section 5 depositor estate High Court court High Court Minister trustee section 9 trustee company section 2
2: For the purposes of section 3 subpart YB 1958 No 23 s 2(2) Section 2(1) High Court inserted 1 April 1980 section 12 Judicature Amendment Act 1979 Section 2(1) Minister replaced 1 October 1995 section 10(3) Department of Justice (Restructuring) Act 1995 Section 2(1) Supreme Court repealed 1 April 1980 section 12 Judicature Amendment Act 1979 Section 2(1) trustee amended 30 January 2021 section 161 Trusts Act 2019 Section 2(2) replaced 1 April 2010 section 861 Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009
3: Application of Act
1: This Act shall apply to—
a: the AMP Perpetual Trustee Company N.Z. Limited
b: any other trustee company to which this Act is applied by Order in Council made under subsection (3) from the date specified in that Order in Council:
c: any other company (being a company that is associated with a trustee company to which this Act applies or is being applied) to which this Act is applied by Order in Council made under subsection (3) from the date specified in that Order in Council.
2: This Act may be applied to any trustee company or company that is associated with a trustee company notwithstanding that it has been dissolved or struck off the register; and no trustee company to which this Act applies shall be struck off the register after the commencement of this Act unless the prior consent in writing of the board of directors for the time being of the trustee company is given to the Registrar of Companies.
3: Where it is desirable for the protection of any beneficiary under any trust administered by any trustee company or by any company that is associated with a trustee company to which this Act applies or is being applied, or for the protection of any depositors, or creditors (whether secured or unsecured) of any such trustee company or associated company, or it is otherwise in the public interest, that the provisions of this Act should apply to the trustee company or associated company and the said beneficiaries, depositors, or creditors, or the public interest cannot be adequately protected under the Companies Act 1993 trustee company company
4: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 3(1) amended 1 April 1988 section 4(1) AMP Perpetual Trustee Company Act 1988 Section 3(3) amended 5 December 2013 section 14 Companies Amendment Act 2013 Section 3(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
4: Moratorium
1: The provisions of this section shall apply in relation to any trustee company or associated company during the period of 12 months after the commencement of the application of this Act to that trustee company or associated company or until such date (whether before or after expiry of that period) as the Minister may for the time being Gazette
2: No person who has deposited or entrusted any money with any trustee company or associated company to which this Act applies for investment, whether in a group investment fund, or on a separate account, or in separate securities, or on a contributory or agency basis, or otherwise, shall, while this section applies to that trustee company or associated company,—
a: bring or continue any action or proceeding, or exercise any other power, right, or remedy against that trustee company or associated company for recovery or repayment thereof notwithstanding that he may have made or be entitled to make demand therefor, or that the time for repayment (whether fixed by contract or otherwise) may have arrived; or
b: issue any execution, attach any debt, or otherwise enforce or seek to enforce any security or any judgment or order obtained against that trustee company or associated company; or
c: petition for the winding up of that trustee company or associated company; or
d: provided that, with the consent of the board, an action or proceeding may be brought against the trustee company or associated company for the purpose of determining whether any right or liability exists.
3: No person having power to appoint a new trustee in place of that trustee company or associated company shall while this section applies to that trustee company or associated company exercise that power without the consent of the court or the board of directors of that trustee company or associated company.
4: While this section applies to any trustee company or associated company to which this Act applies, the court shall not give that consent, or make an order appointing a new trustee (whether under any Act or otherwise) in place of that trustee company or associated company, or removing that trustee company or associated company as trustee of any estate, unless either—
a: the board of directors consents; or
b: the court is satisfied that there are extraordinary reasons which justify the making of that appointment or order and that the need to account to the new trustee for the assets of the estate will not strain unduly the liquidity of the trustee company or associated company. Section 4(1) amended 9 December 1976 Trustee Companies Management Amendment Act 1976 Section 4(2)﻿(d) amended 1 January 2008 section 364(1) Property Law Act 2007
5: Directors of company to which Act applies
1: Upon the commencement of the application of this Act to any trustee company or associated company, the directors thereof holding office immediately prior thereto, including the directors of any local board, shall go out of office.
2: During the period while this Act continues to apply to any trustee company or associated company no directors thereof may be appointed to act during that period otherwise than in accordance with this section or section 11
3: Notwithstanding anything to the contrary in any other Act or instrument, while this Act applies to any trustee company the directors thereof shall be a board of directors comprising—
a: in the case of the AMP Perpetual Trustee Company N.Z. Limited
i: 2 persons appointed by the Minister, of whom one shall be a chartered accountant and the other shall be a barrister or solicitor:
ii: the Secretary to the Treasury:
iii:
iv: 2 or more other persons appointed by the Minister:
b: in any other case not fewer than 5 persons appointed by the Minister.
4: The Minister shall appoint one of the appointed members to be chairman of the board of directors.
5: Every appointed member shall hold office at the pleasure of the Minister.
6: The powers of the board shall not be affected by any vacancy in its membership.
7: An appointed member may at any time resign his office by notice in writing to the Minister.
8: Any vacancy in the board may be filled in the same manner as the appointment of the member vacating office. Section 5(3)﻿(a) amended 1 April 1988 section 4(1) AMP Perpetual Trustee Company Act 1988 Section 5(3)﻿(a)﻿(iii) repealed 1 March 2002 section 170(1) Public Trust Act 2001
6: Meetings of board
1: Meetings of the board shall be held at such times and places as the chairman or the board appoints.
2: At every meeting of the board 3 members shall be a quorum.
3: The chairman shall preside at every meeting at which he is present, and in his absence the members present shall elect one of their number to preside at that meeting.
4: On every question before a meeting of the board the chairman or other person presiding shall have a deliberative vote, and in the case of an equality of votes he shall also have a casting vote.
7: Conduct of business while Act applies to company
1: While this Act applies to any trustee company or associated company it shall not be lawful or competent for any manager or other person to be engaged in the management or conduct of that trustee company or associated company or its property, or to act as its agent or servant, save with the permission of the board and so far as that permission extends.
2: In the case of any company not incorporated in New Zealand, being a company to which this Act applies, the provisions of this section shall not apply to its property outside New Zealand.
8: Termination of contract of agency or service
The board of any trustee company or associated company to which this Act applies may at any time terminate any contract of service or agency between the trustee company or associated company and any person who is a servant or agent thereof, notwithstanding that by law apart from this Act the trustee company or associated company could not have so terminated the contract until some future date; and where a contract is so terminated under this section the trustee company or associated company shall thereupon be discharged from the further performance of the contract, and from all liability for subsequent non-performance of the contract: provided that after the termination of his contract the person may, within 6 months of receiving notice of the termination, apply to the High Court Section 8 amended 1 April 1980 section 12 Judicature Amendment Act 1979
9: Duties and functions of board
1: In the exercise in relation to any trustee company or associated company to which this Act applies of the powers and functions conferred upon the board of that trustee company or associated company by this Act, it shall be the duty of the board to take possession of and protect the property of that trustee company or associated company, and to manage and carry on its business, having due regard to the rights and interests of all beneficiaries, depositors, creditors, and shareholders.
2: Nothing in this section shall limit the powers expressly conferred upon the board by section 10
10: Powers of board
Notwithstanding anything to the contrary in any Act or instrument, the board of any trustee company or associated company to which this Act applies shall have—
a: all such powers, authorities, rights, privileges, and immunities as the directors of that trustee company or associated company would have if this Act did not apply thereto:
b: power to sell the business of that trustee company or associated company as a going concern, or to sell all or any part of the property of that trustee company or associated company that is used for the purposes of its business:
c: all such powers as are conferred upon it by regulations made under section 25
11: Local boards of directors
The board of directors appointed under section 5 section 20 provided that any such appointment may make provision for withholding a seal from the local board to which the appointment relates, or may specify the circumstances in which the seal of the local board may be used, or may impose conditions or restrictions on its use including a requirement that prior confirmation or supervision be obtained.
12: Delegations
Without restricting the generality of the powers, whether derived under this Act or any other enactment or instrument or in any other way, of the board appointed under section 5 section 21
13: Duty to deliver books and property to board
1: It shall be the duty of all persons having possession and control of,—
a: any books or records or documents or other property, whatsoever and wheresoever situated, of any trustee company or associated company incorporated in New Zealand to which this Act applies; or
b: any books or records or documents, whatsoever and wheresoever situated, relating to the property in New Zealand of any trustee company or associated company not incorporated in New Zealand to which this Act applies; or
c: any property in New Zealand of any trustee company or associated company not incorporated in New Zealand to which this Act applies,— forthwith after the passing of this Act in the case of the trustee company specified in section 3(1)﻿(a) section 5
2: If any person fails for 14 days to comply with the requirements of subsection (1), he commits an offence, and is liable on
3: If any person fails to comply with the requirements of subsection (1), the board concerned may at any time certify the failure to the court (whether or not an offence has been committed under subsection (2)), and the court may thereupon inquire into the matter of the failure and, after hearing any witnesses who may be produced against or by or on behalf of the alleged offender, and after hearing any statement which may be offered in defence, may punish the offender in like manner as if he were liable to punishment under subpart 4
4: It shall be no defence to any proceedings under this section that the person in possession or control of any property as aforesaid is or was a trustee of the property for any trustee company or associated company incorporated in New Zealand to which this Act applies or entitled to a lien or other charge over the property, or was a receiver appointed in accordance with the Receiverships Act 1993
5: The rights of any person who, in accordance with this section, delivers any property to the board in respect of any trustee company or associated company incorporated in New Zealand to which this Act applies or its authorised agent shall continue while this Act continues to apply to the trustee company or associated company as if the person had not so delivered the property; and when this Act ceases to apply to the trustee company or associated company, subject to the provisions of this Act and unless the court otherwise orders, the property shall be returned to the person who delivered it or to someone who derives a right to possession of the property from that person. The provisions of this subsection shall apply whether the person who delivers the property is a receiver appointed in accordance with the Receiverships Act 1993 Section 13(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 13(3) amended 26 August 2020 section 29 Contempt of Court Act 2019 Section 13(4) amended 5 December 2013 section 14 Companies Amendment Act 2013 Section 13(5) amended 5 December 2013 section 14 Companies Amendment Act 2013
14: Protection of board, etc
1: For the purposes of this Act the board in respect of any trustee company or associated company to which this Act applies, in the exercise of its powers and functions under this Act, shall have all the privileges and be entitled to the same protection as a director has under any rule of law or under any Act or pursuant to the articles of the trustee company or associated company.
2: No such board nor any member thereof shall be liable for any acts done by it when in good faith in the exercise of its or his powers and functions as the board or a member thereof, and every such board and member shall be indemnified out of the property of the trustee company or associated company in respect of all liabilities properly incurred.
3: No action or proceeding shall be brought or commenced against any such board or member except by leave of the court and subject to such terms as the court may impose.
15: Expenses of administration
All costs, charges, and expenses properly incurred by a board appointed under section 5 section 11
16: Determination of management
1: Every trustee company and associated company to which this Act applies shall remain subject to this Act from the time when this Act first applies thereto until the Governor-General, by Order in Council, declares that this Act shall cease to apply thereto, whether or not there is for the time being a board in office in respect thereof.
2: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 16(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
17: Report to Minister
1: As soon as practicable after its establishment, the first board of directors appointed under section 5
2: The statement of affairs shall be accompanied by any comments that the board sees fit to make thereon.
3: At the end of each 6-monthly period after its appointment the board shall report to the Minister on the financial affairs of the trustee company or associated company and its management thereof.
4: In each period of 12 months and within 1 month after the determination of its appointment, the board shall submit a statement of accounts, duly audited, showing in detail its receipts and payments in respect of that company.
5: A copy of every report and financial statement presented to the Minister pursuant to this section shall be lodged by the board with the Registrar of Companies.
18: Claims by beneficiaries against company
1: Except with the consent of the High Court beneficiary
2: Subject to any directions that may be given by the High Court
3: If the board is satisfied that any such trustee company or associated company has been in breach of its fiduciary duties and it is satisfied that there is a common question of law or of fact affecting the several rights of all or any of the beneficiaries and a common relief is sought, it may bring an action or other legal proceedings in the name of the company against the company on behalf of all such beneficiaries and it shall not be necessary to make those beneficiaries parties to or join them in the action.
4: Any proceedings brought under this section may claim relief in respect of 1 or more causes of action.
5: In the conduct of proceedings to which this section applies, the High Court
a: the separate representation of any class or classes of beneficiaries:
b: determining the course of proceedings:
c: prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument:
d: requiring, for the protection of the beneficiaries or otherwise for the fair conduct of the action, that notice be given to any person of the action, and the proposed extent or effect of the judgment:
e: consenting to other persons intervening and presenting claims or defences or otherwise coming into the action on such conditions as the court thinks just:
f: dealing with other procedural matters.
5A: Where the court is satisfied that the amount that could be recovered under a judgment given against a company under this section would be more than the net worth of the company, the court may at any time (whether at the time the judgment is given or thereafter) make an order determining that the maximum amount that can be recovered under the judgment is the amount that the court considers is the net worth of the company as a going concern (including any unpaid capital and any other amount liable to be contributed by the shareholders to the company in the event of the winding up thereof).
6: Every judgment given in an action brought under this section shall be final and binding on every beneficiary as if he had brought the action in his own name.
7: Where any judgment has been given under this section (whether before or after the commencement of the Trustee Companies Management Amendment Act 1987), the board shall so far as practicable settle a list of beneficiaries entitled to participate to the extent of $100 or more in the amount recovered under the judgment and their respective amounts.
7A: For the purpose of settling a list of beneficiaries so entitled, the board may, if it thinks fit, advertise for claims by beneficiaries; and in any such case the board shall not be required to include in the list any beneficiary who has not lodged a claim with the board within such period after the date of the last publication of the advertisement as shall be fixed by the court unless the board has funds recovered under the judgment that are available for distribution to beneficiaries and is satisfied that there is reasonable excuse for the failure to lodge a claim within that period.
7B: If the amounts of the entitlements of beneficiaries exceed the amount recovered under the judgment, those amounts shall reduce rateably.
7C: The board shall not advertise for claims under subsection (7A) unless the court has approved the form and content of the advertisements, the manner of advertising, and the dates of publication.
7D: The board shall not be required to calculate the exact amount of the entitlement of a beneficiary under this section but may calculate the amount of the entitlement as near to the exact amount as the board considers reasonable having regard to the amount of the claim and the costs involved in its calculation.
8: If any balance of the amount payable under the judgment remains undistributed, that balance shall be paid or applied for charitable purposes in accordance with a scheme prepared by the board and approved by the court.
9: Any such scheme prepared by the board shall be submitted to the High Court
10: The High Court Section 18(1) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 18(2) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 18(5) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 18(5A) inserted 5 October 1978 Trustee Companies Management Amendment Act 1978 Section 18(7) replaced 10 July 1987 Trustee Companies Management Amendment Act 1987 Section 18(7A) inserted 10 July 1987 Trustee Companies Management Amendment Act 1987 Section 18(7B) inserted 10 July 1987 Trustee Companies Management Amendment Act 1987 Section 18(7C) inserted 10 July 1987 Trustee Companies Management Amendment Act 1987 Section 18(7D) inserted 10 July 1987 Trustee Companies Management Amendment Act 1987 Section 18(8) replaced 10 July 1987 Trustee Companies Management Amendment Act 1987 Section 18(9) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 18(10) amended 1 April 1980 section 12 Judicature Amendment Act 1979
18A: Provisions apply to Perpetual Trustees Substitute Company Limited
Notwithstanding anything contained in section 18 Section 18A inserted 10 July 1987 Trustee Companies Management Amendment Act 1987
19: Prohibition on certain claims against other trustee companies
1: This section shall apply to any money deposited with or entrusted to a trustee company (not being a trustee company to which this Act applies) for investment in a group investment fund, or on separate account, or in separate securities, or on a contributory or agency basis.
2: No money to which this section applies shall be demanded by any person, and no action shall be commenced or continued to enforce the payment of any such money, while this section is operative.
3: This section shall be operative—
a: during 4 months from the commencement of this Act; and
b: during 4 months from the commencement of the application of this Act to any trustee company by any Order in Council made under section 3(3)
20: Offence to destroy or alter records
1: If any former director, or any director, or any officer, servant, or agent of any trustee company or associated company to which this Act applies or any other person,—
a: with intent to defeat the purposes of this Act, destroys or alters any book, document, or record of or relating to the trustee company or associated company, or sends or attempts to send or conspires with any other person to send out of New Zealand any such book, document, or record, or any property of any description belonging to or in the disposition or under the control of the said trustee company or associated company; or
b: fails or refuses to answer to the best of his knowledge and ability any question which he may be asked by the board in relation to any such book or document or record or property, or wilfully gives a false answer to any such question,— he commits an offence and is liable on conviction
2: If in any prosecution for an offence alleged to have been committed against this section it is proved that the person charged with the offence has destroyed or altered any book, document, or record as aforesaid, or has sent or attempted to send or conspired to send out of New Zealand any such book, document, or record, or any other thing, the onus of proving that in so doing he had not acted in contravention of this section shall lie on him.
3: Amendment(s) incorporated in the Act(s)
4: Despite anything to the contrary in section 25 Section 20(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 20(4) inserted 1 July 2013 section 413 Criminal Procedure Act 2011
21: Duty to report offences, etc
If it appears to the board of any trustee company or associated company to which this Act applies that any person has been guilty of any offence against this Act, or of a breach of trust or any other offence in relation to that trustee company or associated company, it shall report the matter to the Solicitor-General.
22: Advances of fees of boards, etc
1: With the consent of the Minister of Finance, there may be advanced, out of public money section 5 section 11
2: All money so advanced to any such person shall be refunded to the Crown out of money payable to that board in respect of the trustee company or associated company, and the Crown shall have all the rights of the board to which the advance was made to receive and recover such money
3: The Minister of Finance may, on behalf of the Crown, guarantee pursuant to the Public Finance Act 1989 Section 22(1) amended 1 July 1989 section 86(1) Public Finance Act 1989 Section 22(2) amended 1 July 1989 section 86(1) Public Finance Act 1989 Section 22(3) amended 1 July 1989 section 86(1) Public Finance Act 1989 Section 22(3) amended 1 April 1978 Public Finance Act 1977
23: Special advances to companies
1: The Minister of Finance may advance money, or guarantee pursuant to the Public Finance Act 1989
2: The Minister of Finance may advance money, or guarantee pursuant to the Public Finance Act 1989 AMP Perpetual Trustee Company N.Z. Limited
3: On the repayment of the last mentioned money the National Bank of New Zealand Limited shall surrender to the board the securities deposited with the bank by the company as part of the transaction between them.
4: The National Bank of New Zealand Limited shall be indemnified by the Crown for any loss suffered or occasioned by the said bank by reason of the repayment of money under subsection (1). Section 23(1) amended 1 July 1989 section 86(1) Public Finance Act 1989 Section 23(1) amended 1 April 1978 Public Finance Act 1977 Section 23(2) amended 1 July 1989 section 86(1) Public Finance Act 1989 Section 23(2) amended 1 April 1988 section 4(1) AMP Perpetual Trustee Company Act 1988 Section 23(2) amended 1 April 1978 Public Finance Act 1977
24: Application of
Companies Act 1993
1: The board in respect of any trustee company or associated company to which this Act applies shall notify the Registrar of Companies of the commencement and termination of the application of this Act to the trustee company or associated company.
2: Nothing in sections 120 196 to 209B 214
3: Nothing in the Receiverships Act 1993
4: Nothing in the Companies Act 1993 Section 24 heading amended 5 December 2013 section 14 Companies Amendment Act 2013 Section 24(2) replaced 5 December 2013 section 14 Companies Amendment Act 2013 Section 24(3) replaced 5 December 2013 section 14 Companies Amendment Act 2013 Section 24(4) inserted 5 December 2013 section 14 Companies Amendment Act 2013
24A: Application of Financial Reporting Act 1993
Section 24A repealed 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013
25: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: conferring on the board of directors of any trustee company or associated company to which this Act applies such powers as are necessary for the due administration of any property belonging to or administered by that trustee company or associated company:
b: providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for the due administration thereof.
2: Regulations made under paragraph (a) of subsection (1) may be so made as to apply generally to the boards of all trustee companies and associated companies to which this Act applies or to 1 or more of them.
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 25(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021