Unit Trusts Act 1960

1: Short Title and commencement
1: This Act may be cited as the Unit Trusts Act 1960.
2: This Act shall come into force on 1 April 1961.
2: Interpretation
1: In this Act, unless the context otherwise requires,— bank a person carrying on in New Zealand the business of banking company Companies Act 1955 Companies Act 1993 District Registrar FMA Part 2 interest in a unit trust manager Minister nominated person section 6 nominee section 6B portfolio investment entity Income Tax Act 2007 Registrar trust Trustee Act 1956 trust deed trustee
a: the trustee in which is vested any money, investments, and other property that are for the time being subject to the trusts governing the unit trust; or
b: if any money, investments, and other property that are for the time being subject to the trusts governing the unit trust are vested in a nominated person, the trustee that appointed the nominated person; or
c: if any money, investments, and other property that are for the time being subject to the trusts governing the unit trust are vested in a nominee of a nominated person, the trustee that appointed the nominated person unit holder section 13 unit trust that is established under New Zealand law and and not as an association
a: a trust for the benefit of debenture holders; or
b: the Common Fund of Public Trust
c: the Common Fund of the Māori Trustee
d: any Group Investment Fund established under the Trustee Companies Act 1960
da: any group investment fund established under the Public Trust Office Act 1957 Public Trust Act 2001
e: any friendly society or credit union registered or deemed to be registered under the Friendly Societies and Credit Unions Act 1982
f: any superannuation scheme which Superannuation Schemes Act 1989
g: a share purchase scheme as defined in section YA 1
h: any trust fund or global asset trust or GAT subsidiary or pool within the meaning of the National Provident Fund Restructuring Act 1990
2: Section 63 of the Companies Act 1955 Section 2(1) bank amended 30 June 1995 section 2(2) Banking Act Repeal Act 1995 Section 2(1) company replaced 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 2(1) FMA inserted 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 2(1) Minister replaced 1 October 1995 section 10(3) Department of Justice (Restructuring) Act 1995 Section 2(1) nominated company repealed 3 June 1998 section 2(1) Unit Trusts Amendment Act 1998 Section 2(1) nominated person inserted 3 June 1998 section 2(1) Unit Trusts Amendment Act 1998 Section 2(1) nominee inserted 3 June 1998 section 2(1) Unit Trusts Amendment Act 1998 Section 2(1) portfolio investment entity inserted 1 October 2007 section 246 Taxation (Savings Investment and Miscellaneous Provisions) Act 2006 Section 2(1) portfolio investment entity amended 1 April 2008 section ZA 1(1) Income Tax Act 2007 Section 2(1) trustee replaced 3 June 1998 section 2(2) Unit Trusts Amendment Act 1998 Section 2(1) unit trust amended 1 December 2002 section 28 Securities Amendment Act 2002 Section 2(1) unit trust amended 1 January 1974 Syndicates Act 1973 Section 2(1) unit trust amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 2(1) unit trust amended 1 July 2009 section 30(2)(a) Māori Trustee Amendment Act 2009 Section 2(1) unit trust inserted 1 March 2002 section 170(1) Public Trust Act 2001 Section 2(1) unit trust replaced 1 April 1983 section 161(1) Friendly Societies and Credit Unions Act 1982 Section 2(1) unit trust replaced 22 March 1989 section 31(1) Superannuation Schemes Act 1989 Section 2(1) unit trust amended 1 April 1990 section 32(3) Superannuation Schemes Act 1989 Section 2(1) unit trust paragraph (g): replaced 1 April 2005 section YA 2 Income Tax Act 2004 Section 2(1) unit trust amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 2(1) unit trust inserted 1 April 1991 section 77 National Provident Fund Restructuring Act 1990
3: Unit trust to have manager and trustee
1: There shall be a manager and a trustee of every unit trust.
2: Subject to the provisions of this Act, the company that is the manager of any unit trust—
a: shall have vested in it the powers of management of the investments and other property that are subject to the trusts governing that unit trust; and
b: shall have the function (whether as principal or by an agent) of issuing or offering interests in the unit trust to the public for subscription or purchase, or of inviting the public to subscribe for or purchase such interests, or both of those functions; and
c: shall have the same liability for its acts and omissions in the exercise of its powers and functions as manager of the unit trust as it would if it exercised those powers and functions as a trustee.
3: Subject to this Act, the trustee of a unit trust must have vested in it or in 1 or more nominated persons of the trustee or in 1 or more nominees of a nominated person of the trustee the investments and other property that are for the time being subject to the trusts governing the unit trust.
4: A trustee corporation or company or bank must not act as a trustee of a unit trust, and a company must not act as manager of a unit trust if those 2 persons are associated with each other under subpart YB Section 3(3) replaced 3 June 1998 section 3 Unit Trusts Amendment Act 1998 Section 3(4) replaced 1 April 2010 section 861 Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009
4: Restriction as to manager
1: Every manager of a unit trust shall be either—
a: a company within the meaning of the Companies Act 1955
b: a company within the meaning of the Companies Act 1993
i: a reporting entity within the meaning of the Financial Reporting Act 1993
ii: an exempt company within the meaning of the Financial Reporting Act 1993
1A: Notwithstanding anything in the Financial Reporting Act 1993
2: No company shall act as manager of a unit trust unless a person approved by the FMA
3: The sum of 20,000 pounds named in a bond given under this section shall not be deemed to be a penalty, but shall be liquidated damages, and shall accordingly be recoverable in full as a debt due by the surety to Her Majesty the Queen unless the surety proves performance of every condition upon which the bond is defeasible.
4: Every sum so recovered shall be paid into a Crown Bank Account a Crown Bank Account
5: A bond given under subsection (2) must be released if the unit trust has been wound up and the trustee and manager of the unit trust have given notice in writing of the winding up to the FMA Section 4(1) replaced 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 4(1A) inserted 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 4(2) amended 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 4(4) amended 25 January 2005 section 83(7) Public Finance Act 1989 Section 4(5) inserted 15 April 2004 section 3 Unit Trusts Amendment Act 2004 Section 4(5) amended 1 May 2011 section 82 Financial Markets Authority Act 2011
5: Restrictions as to trustee
Section 5 repealed 1 October 2011 section 78 Securities Trustees and Statutory Supervisors Act 2011
6: Nomination of person
1: If authorised by the trust deed, any trustee of a unit trust has power to nominate, in writing, 1 or more persons in which are vested any of the investments and other property referred to in section 3(3)
2: Upon the nomination of a person by the trustee, the trustee, in addition to its own obligations as trustee in relation to the unit trust, is jointly and severally liable with the nominated person for the due and faithful performance and observance by the nominated person of all the duties and obligations imposed on the nominated person in relation to the unit trust either by this Act or by law. Section 6 replaced 3 June 1998 section 4 Unit Trusts Amendment Act 1998
6A: Restrictions as to nominated person
A person must not be nominated by a trustee under section 6
a: the person is the manager or proposed manager of the unit trust in respect of which the nomination relates; or
b: the persons who are deemed by section YC 1 Section 6A inserted 3 June 1998 section 4 Unit Trusts Amendment Act 1998 Section 6A(b) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007
6B: Appointment of nominee by nominated person
1: A nominated person may, if authorised in writing by the trustee of a unit trust, appoint 1 or more nominees in which are vested any of the investments and other property referred to in section 3(3)
2: Upon the appointment of a nominee, the trustee and the nominated person that appointed the nominee, in addition to their own obligations in relation to the unit trust, are jointly and severally liable with the nominee for the due and faithful performance and observance by the nominee of all the duties and obligations imposed on the nominee in relation to the unit trust by this Act or by law. Section 6B inserted 3 June 1998 section 4 Unit Trusts Amendment Act 1998
6C: Restrictions as to nominee
A person must not be appointed nominee by a nominated person under section 6B
a: the person is the manager or proposed manager of the unit trust in respect of which the appointment relates; or
b: the persons who are deemed by section YC 1 Section 6C inserted 3 June 1998 section 4 Unit Trusts Amendment Act 1998 Section 6C(b) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007
7: Application of Securities Act 1978
The Securities Act 1978 Section 7 replaced 1 October 1997 section 3 Unit Trusts Amendment Act 1996
8: Appointment of trustee
No manager of a unit trust, and no person as agent of such a manager, shall issue or offer to the public for subscription or purchase any interest in a unit trust, or invite the public to subscribe for or purchase such an interest, unless—
a: provision has been made in a deed for the appointment of a trustee of the unit trust and for such other matters as are prescribed by this Act and by any regulations made thereunder; and
b: a trustee who holds a licence under the Securities Trustees and Statutory Supervisors Act 2011
c: the trust deed has been approved for the purposes of this Act by the Registrar or the District Registrar section 9 Section 8(b) amended 1 October 2011 section 79 Securities Trustees and Statutory Supervisors Act 2011 Section 8(c) amended 10 July 1987 Unit Trusts Amendment Act 1987
9: Copy of deed to be lodged with District Registrar
1: Notwithstanding anything to the contrary in section 125 of the Companies Act 1955 or section 92
2: Every such copy shall be authenticated by a director or responsible officer of the company that is trustee of the unit trust.
3: Where an authenticated copy of any amendment of the trust deed in respect of any unit trust has to be lodged with the District Registrar as aforesaid, it shall be so lodged within 14 days after the date of the execution of the amendment or (if the trust deed has not been so lodged at that date) within 14 days after the date on which the trust deed is so lodged. Section 9(1) amended 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994
10: Removal of trustees
1: A trustee may not resign as trustee of a unit trust unless—
a: all functions and duties of the position have been performed; or
b: the manager has appointed another person who holds a licence under the Securities Trustees and Statutory Supervisors Act 2011
c: the High Court consents.
2: Despite anything to the contrary in the trust deed, a manager may not discharge or remove a trustee except with the approval of the High Court.
3: Subsection (2) does not apply to the removal of a trustee by the manager under Part 2 Section 10 replaced 1 October 2011 section 80 Securities Trustees and Statutory Supervisors Act 2011
11: Obligation to make specified information available to unit holders
1: The manager of a unit trust (other than a manager referred to in subsection (2)) must, annually, send to every unit holder—
a: a copy of—
i: the audited statement of accounts in respect of the trust; and
ii: a statement summarising all amendments to the trust deed that have been made since the date of the last statement; or
b: a notice containing the statements specified in subsection (3).
2: The manager of a unit trust that is an issuer (as defined in section 4(1)
a: a copy of—
i: the financial statements registered under the Financial Reporting Act 1993
ii: the auditor's report on those statements; and
iii: a statement summarising all amendments to the trust deed that have been made since the date of the last statement; or
b: a notice containing the statements specified in subsection (3).
3: The notice referred to in subsection (1)(b) or (2)(b), as the case may be, must contain—
a: a statement to the effect that the unit holder has a right to receive from the manager, free of charge, a copy of the information specified in subsection (1)(a) or (2)(a) (the specified information
b: a statement to the effect that the unit holder may obtain a copy of the specified information by electronic means; and
c: a statement as to how the unit holder may obtain a copy of the specified information by electronic means (for example, from a specified Internet site).
4: The notice may be accompanied by any additional information or documentation that the manager thinks fit. Section 11 replaced 31 August 2012 section 4 Unit Trusts Amendment Act 2012
11A: Manager must send copy of specified information on request
1: If the manager has sent a notice to a unit holder under section 11(1)(b) or (2)(b)
2: If a unit holder makes a request under subsection (1),—
a: the request must be treated as a request for the manager to send to the unit holder each year a copy of the specified information under section 11(1)(a) or (2)(a)
b: the manager must send to the unit holder each year a copy of the specified information under section 11(1)(a) or (2)(a) Section 11A inserted 31 August 2012 section 4 Unit Trusts Amendment Act 2012
11B: Specified information made available by electronic means
If the manager has sent a notice to a unit holder under section 11(1)(b) or (2)(b)
a: a copy of the specified information is available in the manner described in section 11(3)(c) section 11(1) or 11(2)
b: the manner described in the notice under section 11(3)(c) Section 11B inserted 31 August 2012 section 4 Unit Trusts Amendment Act 2012
12: Implied provisions in trust deed
1: The following provisions shall be implied in every trust deed relating to a unit trust, notwithstanding anything to the contrary in the deed:
a: that the manager of the unit trust shall use its best endeavours to ensure that the unit trust is carried on in a proper and efficient manner:
b: that the manager of the unit trust shall—
i: make available upon demand to the trustee thereof
ii: give to the trustee of the unit trust
c: that the trustee of the unit trust shall not act on any direction of the manager to acquire any property for the unit trust or dispose of any property of the unit trust if, in the trustee's opinion conveyed in writing to the manager, the proposed acquisition or disposal is manifestly not in the interests of the unit holders; and the trustee shall not be liable to the unit holders or to the manager for so refusing to act on any direction of the manager:
d: that the manager of a unit trust shall,—
i: on request in writing of the trustee, or of either one-tenth in number of the unit holders, or of a unit holder or unit holders holding (at the date of the receipt by the manager of the request) not less than one-tenth of the value of the interests in the unit trust then held by unit holders, summon a meeting of unit holders to be held in accordance with section 18
ii: lay before the meeting copies of the last statements and summaries filed with the District Registrar in accordance with paragraph (b) of subsection (1) of section 20
1A: A provision implied in a trust deed by regulations made under section 28(2)(e)
a: does not apply to the extent that it is inconsistent with provisions implied in the trust deed by section 12(1)
b: applies despite anything else to the contrary in the trust deed.
2: Every provision implied in the trust deed relating to any unit trust in accordance with this section shall be enforceable by the trustee , the manager, Section 12(1)(b)(i) amended 3 June 1998 section 5(a) Unit Trusts Amendment Act 1998 Section 12(1)(b)(ii) amended 3 June 1998 section 5(a) Unit Trusts Amendment Act 1998 Section 12(1)(b)(ii) amended 3 June 1998 section 5(b) Unit Trusts Amendment Act 1998 Section 12(1A) inserted 1 October 2011 section 81(1) Securities Trustees and Statutory Supervisors Act 2011 Section 12(2) amended 1 October 2011 section 81(2) Securities Trustees and Statutory Supervisors Act 2011
12A: Implied provision in trust deed of portfolio investment entity
1: The provision in subsection (2) shall be implied in every trust deed relating to a unit trust for which the trustee is a portfolio investment entity, notwithstanding anything to the contrary in the deed.
2: Where any money, investments or other property of the unit trust is employed in an activity carried on as a portfolio investment entity, the manager may adjust the interests in the unit trust of the beneficiaries in the way required by section HL 7 Section 12A inserted 1 October 2007 section 247 Taxation (Savings Investment and Miscellaneous Provisions) Act 2006
13: Certificate of interest to be issued
Section 13 repealed 1 October 1997 section 5 Unit Trusts Amendment Act 1996
14: Duty of manager with respect to subscriptions
1: The manager of any unit trust shall pay into a separate bank account all money received by that manager or any agent of that manager in respect of purchases of or subscriptions for interests in that unit trust.
2: The manager of any unit trust shall, within such period not exceeding 7 days as the trust deed provides, pay to the trustee or a nominated person of the trustee or a nominee of a nominated person of the trustee Section 14(2) amended 3 June 1998 section 6 Unit Trusts Amendment Act 1998
15: Subscriptions, etc, to become subject to trusts
All money required to be paid to the trustee or a nominated person of the trustee or a nominee of a nominated person of the trustee subsection (2) of section 14 Section 15 amended 3 June 1998 section 7 Unit Trusts Amendment Act 1998
16: Trust deed to state conditions for buying back interests
1: The trust deed in respect of each unit trust shall state whether the manager has an obligation to buy back interests in the unit trust if requested to do so.
2: Where the manager has such an obligation, the trust deed shall also state the manner in which and the conditions on which such interests are to be bought back, including the method of calculating the minimum price at which interests are to be bought back.
17: Interests in unit trust to be transferable
1: Every interest in a unit trust shall be transferable.
2: Where interests in a unit trust are transferable as aforesaid, the trust deed in respect of the unit trust shall state the manner in which transfers of interests in the unit trust shall be made and recorded.
18: Meeting of unit holders
1: Where a meeting of the unit holders of any unit trust is held in accordance with subparagraph (i) of paragraph (d) of subsection (1) of section 12
2: A unit holder or unit holders holding not less than three-quarters of the value of the interests in the unit trust held by the unit holders who are present in person or by proxy at any such meeting and vote, and who hold not less than one-quarter of the value of all the interests in the unit trust held by unit holders, shall have the power by resolution to give such directions to the trustee of the unit trust as they think proper concerning the unit trust, being directions that are consistent with the provisions of the trust deed and this Act and any directions given by the Financial Markets Authority under the Securities Trustees and Statutory Supervisors Act 2011
3: Where any direction is so given to the trustee of a unit trust, the trustee may comply with the direction, and shall not be liable for anything done or omitted by it by reason of its following that advice or direction.
4: In any case where the trustee of a unit trust is of opinion that any direction so given conflicts with the trusts, a direction of the Financial Markets Authority, any rule of law, the High Court provided that nothing in this subsection shall make it necessary to apply to the court for directions.
5: Where a unit holder is a company or other corporation its properly appointed representative may be its proxy. Section 18(2) amended 1 October 2011 section 82(1) Securities Trustees and Statutory Supervisors Act 2011 Section 18(4) amended 1 October 2011 section 82(2) Securities Trustees and Statutory Supervisors Act 2011 Section 18(4) amended 1 April 1980 section 12 Judicature Amendment Act 1979
19: Removal of manager
1: The court may, on the application of the trustee of a unit trust, or any unit holder, or of the FMA
2: The manager of any unit trust shall cease to hold that office if—
a: the trustee certifies that it is in the interest of the unit holders that the manager should do so; or
b: the unit holders, at a meeting held pursuant to section 18
3: If the court orders the removal of the manager of any unit trust, or if any manager of a unit trust ceases to hold office under subsection (2), that manager shall immediately desist from all activities related to the unit trust. Section 19(1) amended 1 May 2011 section 82 Financial Markets Authority Act 2011
19A: Trustee may apply to High Court for orders relating to unit trust
1: This section applies if a trustee is satisfied that—
a: there is a significant risk that the interests of unit holders will be materially prejudiced; or
b: the provisions of the trust deed are no longer adequate to give proper protection to unit holders.
2: The trustee may apply to the High Court for an order under this section.
3: The court may direct that an application be served on any person that the court thinks fit.
4: On an application, the court may, after giving the manager and any other persons that the court thinks fit the opportunity to be heard, by order—
a: amend the provisions of the trust deed:
b: impose restrictions on the activities of the trustee or the manager (including, in the case of the manager, restrictions on advertising) that the court thinks are necessary for the protection of the interests of unit holders:
c: direct the manager or trustee to convene a meeting of unit holders for the purpose of—
i: having placed before them by the trustee any information relating to their interests, and any proposals for the protection of their interests, that the court or the trustee considers necessary or appropriate; and
ii: obtaining their opinions or directions in relation to the information and proposals referred to in subparagraph (i):
d: give directions in relation to the conduct of any meeting convened in accordance with paragraph (c):
e: stay all civil proceedings before any court by or against the trustee or the manager:
f: restrain the payment of money by the trustee or the manager to unit holders or a class of unit holders:
g: remove a person as manager and appoint another person as manager (with any powers that the court orders):
h: give any other directions that the court considers necessary to protect the interests of unit holders, or the public.
5: The court may vary or cancel an order made under this section.
6: In exercising its powers under this section, the court must have regard to the interests of all creditors in respect of the unit trust. 1978 No 103 s 49 Section 19A inserted 1 October 2011 section 83 Securities Trustees and Statutory Supervisors Act 2011
20: Accounts, etc, to be filed
1:
2: The manager , in relation to each unit trust, that is not an issuer within the meaning of section 4
2A: The manager , in relation to each unit trust, section 4
3: Where a new trustee or a new manager of a unit trust is appointed at any time after the commencement of the trust, that trustee or manager shall give notice of the appointment to the District Registrar within 28 days after the date of the appointment.
4: The documents lodged with the District Registrar pursuant to section 9
5: Every list, statement, summary, and document filed with the District Registrar under this section shall be verified by a statutory declaration made by a director of the company that is manager of the unit trust or by a responsible officer of the company. Section 20(1) repealed 15 April 2004 section 4 Unit Trusts Amendment Act 2004 Section 20(2) amended 3 May 2001 section 3(a) Unit Trusts Amendment Act 2001 Section 20(2) amended 1 July 1994 section 49 Financial Reporting Act 1993 Section 20(2A) inserted 1 July 1994 section 49 Financial Reporting Act 1993 Section 20(2A) amended 3 May 2001 section 3(b) Unit Trusts Amendment Act 2001
21: Appointment of inspectors
1: One or more inspectors to investigate and report on the affairs of any unit trust and its manager may be appointed by—
a:
b: the High Court
2: Every such inspector shall have in relation to the unit trust and its manager and affairs all the powers conferred on an inspector in relation to a company and its affairs by section 171 of the Companies Act 1955 the High Court
3: If any officer or agent of a company that is manager of a unit trust in respect of which an inspector has been appointed under this section refuses to produce to the inspector any book or paper which it is his duty under this section so to produce, or refuses to answer any question which is put to him by the inspector with respect to the affairs of the company or unit trust, that officer or agent commits an offence and is liable on
4: No such officer or agent shall be excused from answering any question put to him by an inspector with respect to the affairs of the company or unit trust on the ground that the answer may incriminate or tend to incriminate him, but no statement made by him in answer to any such question shall be admissible against him in criminal proceedings, except proceedings under the Crimes Act 1961 Section 21(1)(a) repealed 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 21(1)(b) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 21(2) amended 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 21(2) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 21(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 21(4) amended 1 January 1962 section 412(2) Crimes Act 1961
22: Court may confer additional powers of management
1: Subject to any contrary intention expressed in the trust deed in respect of any unit trust, where in the opinion of the High Court the High Court
2: An application to the court under this section may be made by either the manager or the trustee or any unit holder. Section 22(1) amended 1 April 1980 section 12 Judicature Amendment Act 1979
23: Temporary managers
1: If any vacancy occurs in the office of manager of a unit trust, the trustee thereof shall have the power to appoint a qualified company as temporary manager thereof, which temporary manager shall have all the powers conferred on the manager by the trust deed or by law until a manager is appointed.
2: Upon any such vacancy occurring, the trustee of the unit trust shall summon a meeting of the unit holders of the unit trust, and shall take such steps as that meeting or any subsequent meeting of those unit holders may require to secure the appointment of that company or some other qualified company as manager of the unit trust.
24: Trust deed not to exempt trustee or manager from liability
1: The trustee of a unit trust and the manager thereof shall each have the same duty to observe care and diligence in the performance of its duties as any other trustee, and shall each be entitled to the same indemnities and relief as any other trustee.
2: Any provision in a trust deed governing a unit trust or in any other instrument shall be void so far as it would have the effect of—
a: exempting the trustee or manager or any director or officer of the trustee or manager from liability for breach of trust where it or he fails to show the degree of care and diligence required of it or him in that capacity, having regard to the provisions of the trust deed and the powers, authorities, or discretions conferred thereby:
b: indemnifying the trustee or manager or any such director or officer from any such liability.
25: Offences
1: Every person commits an offence and is liable on $1,000,000
a: issues any interest in a unit trust or offers any such interest to the public for subscription or purchase, or invites the public to subscribe for or purchase such an interest, in contravention of any provision of this Act; or
b: subsection (3) of section 19
2: Every person commits an offence and is liable on $10,000 sections 9 11 11A 11B 14 20
3: Every person who has at any time, whether before or after the commencement of this Act, been convicted of a crime involving dishonesty within the meaning of the Crimes Act 1961 $200,000 FMA Section 25(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 25(1) amended 15 April 2004 section 5(1)(a) Unit Trusts Amendment Act 2004 Section 25(1)(b) amended 15 April 2004 section 5(1)(b) Unit Trusts Amendment Act 2004 Section 25(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 25(2) amended 31 August 2012 section 5 Unit Trusts Amendment Act 2012 Section 25(2) amended 15 April 2004 section 5(2)(a) Unit Trusts Amendment Act 2004 Section 25(2) amended 15 April 2004 section 5(2)(b) Unit Trusts Amendment Act 2004 Section 25(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 25(3) amended 1 May 2011 section 82 Financial Markets Authority Act 2011 Section 25(3) amended 15 April 2004 section 5(3) Unit Trusts Amendment Act 2004 Section 25(3) : amended 1 January 1962 section 412(2) Crimes Act 1961
26: Restriction on personal benefits by directors or officers
1: Every person who is a director or officer of a company that is the manager of a unit trust, or of a trustee corporation or company or bank that is the trustee of a unit trust, shall be a trustee for the benefit of the unit holders of any personal profit or benefit which he gains by availing himself of his position, whether by buying or selling or joining in buying or selling investments or securities or otherwise: provided that nothing in this subsection shall affect the right of any such director or officer to receive and retain remuneration from the trustee corporation or company or bank of which he is a director or officer.
2: Any such personal profit shall be transferred to the trustee of the unit trust, and may be recovered by that trustee from the person who gained it.
27: Power of court to assess damages against delinquent directors of manager
1: If, in the course of winding up any company that is the manager of a unit trust, it appears that the company has misapplied or retained or become liable or accountable for any money or property of the unit trust, or committed any misfeasance or breach of trust in relation to the unit trust, the court may, on the application of the Official Assignee or of the liquidator or of the trustee or of any unit holder, examine into the conduct of any past or present director, manager, or liquidator, or any officer of the company who has been a party to or knowingly permitted the misapplication, retention, misfeasance, or breach of trust, and compel him to repay or restore the money or property or any part thereof respectively with interest at such rate as the court thinks just or to contribute such sum to the assets of the trust by way of compensation in respect of the misapplication, retention, misfeasance, or breach of trust as the court thinks just.
2: The provisions of this section shall have effect notwithstanding that the act is one for which the offender may be criminally liable.
3: Where an order for payment of money is made under this section, the order shall be deemed to be a final judgment within the meaning of section 17(1)(a) Section 27(3) amended 3 December 2007 section 445 Insolvency Act 2006
28: Regulations
1: The Governor-General may from time to time, by Order in Council, make all such regulations as may in his opinion be necessary or expedient for giving full effect to the provisions of this Act and for the due administration thereof.
2: Without limiting the general power to make regulations conferred by subsection (1), regulations may be made under this section for all or any of the following purposes:
a: prescribing the maximum commission that may be charged, and the maximum charge for administration and other expenses that may be made, by the manager or trustee of any unit trust:
b: prescribing the fees to be paid on the lodging or filing of any documents in respect of a unit trust with the Registrar or District Registrar, and on the inspection of any such documents:
c: prescribing the manner in which the accounts of the unit trust are to be kept:
d: prescribing information and other matters that must be included in a trust deed:
e: subject to subsection (3), prescribing provisions to be implied into a trust deed.
3: A provision prescribed for the purposes of subsection (2)(e) may, without limitation, do any of the following:
a: specify the duties and powers of the trustee:
b: specify the duties of the manager:
c: provide for the trustee to have the power, exercisable with the consent of the manager (but without requiring the consent of unit holders), to make amendments to the trust deed that do not adversely affect the interests of unit holders. Section 28(2)(d) inserted 1 October 2011 section 84(1) Securities Trustees and Statutory Supervisors Act 2011 Section 28(2)(e) inserted 1 October 2011 section 84(1) Securities Trustees and Statutory Supervisors Act 2011 Section 28(3) replaced 1 October 2011 section 84(2) Securities Trustees and Statutory Supervisors Act 2011
29: Amendment
Section 29 repealed 26 October 1967 section 48 Trustee Companies Act 1967
30: Existing unit trusts
The terms of any trust created before the commencement of this Act in pursuance of a unit trust scheme or arrangement may, notwithstanding anything in any deed or other instrument, be varied or supplemented by a deed made between the trustee and manager under the scheme or arrangement, or otherwise as the Minister may approve, to enable compliance with the requirements of this Act.