AUSTRALIAN CAPITAL TERRITORY

Trustee Act 1925    No 14

Republication No 3B
As in force on 10 November 1999
Includes all amendments up to Act 1999 No 66

Prepared by the ACT Parliamentary Counsel’s Office
This republication is not an authorised republication for the Legislation (Republication) Act 1996.
As in force on
10 November 1999

AUSTRALIAN CAPITAL TERRITORY

Trustee Act 1925
CONTENTS
	Page 
	Trustee Act 1925	i
	Trustee Act 1925	1
	1	Short title	1
Part 1—Interpretation
	5	Interpretation	1
	5A	Notes	4
Part 2—Trustees
Division 1—Appointment, retirement, disclaimer, and ceasing to be executor
Appointment
	6	New trustee	5
	7	Additional trustee	8
Retirement
	8	Retirement	9
Vesting on appointment and retirement
	9	Vesting	10
Disclaimer, and ceasing to be executor
	10	Renunciation of probate	11
	11	Ceasing to be executor	13
Registration
	12	Registration	14
	13	Protection of purchasers	15
Division 2—Powers and duties
Investment
	14	Powers of investment	16
	14A	Duties of trustee in relation to powers of investment	16
	14B	Law and equity preserved	16
	14C	Exercise of power of investment	17
	14D	Powers of trustee in relation to securities	18
	14E	Power to buy house as residence for beneficiary	19
	14F	Investment in securities under RITS system	20
	17	Accepting a short title	20
	18	Ratio of loan to value	21
	19	Loss on authorised security	22
	20	Release of part of the security	22
	21	Arrangement with company	22
	22	New shares in a company	23
	23	Calls on shares	24
	24	Accrued interest on debentures or stock sold or purchased	25
	25	Continued holding	25
Sale and other dealings
	26	Powers incident to sale	25
	27	Duration of trust or power to sell	27
	27B	Postponement of sale	28
	27C	Purchaser under a trust for sale	28
	28	Deferred payment on sale of land	29
	30	Depreciatory conditions	31
	31	Sale of part of land	31
	32	Sale exchange and partition	32
	32A	Power to purchase equity of redemption in lieu of foreclosure	32
	33	Sale after right of redemption barred	33
	34	Release of equity of redemption in discharge of mortgage debt	33
	35	Surrender of onerous lease	34
	36	Leasing	34
	37	Renewal of renewable leasehold	36
	38	Raising money	37
	39	Protection of purchasers or mortgagees	38
	39A	Application of income by trustee/mortgagee in possession	38
	39B	Validation of certain payments by trustee/mortgagee in possession	39
Property not in possession
	40	Powers	40
Insurance
	41	Insurance	42
	42	Application of insurance money	42
Maintenance, advancement, and protective trusts
	43	Maintenance and accumulation	43
	44	Advancement	45
	45	Protective trusts	46
Appropriation, and payment to the public trustee
	46	Appropriation	48
	47	Payment to the public trustee	51
Receipts and compounding
	48	Receipts	53
	49	Compounding	53
Safe custody, audit, and valuation
	50	Deposit for safe custody	54
	51	Audit	54
	52	Valuation	55
Agents, banks, and other persons
	53	Employment of agents	55
	54	Banks	56
	54A	Banker may recognise certain signatures and endorsements	57
	55	Foreign property	58
	56	Undivided interests	58
Surviving trustee
	57	Two or more trustees	59
Protection of trustee
	58	Powers of attorney	59
	59	Implied indemnity	60
	60	Distribution after notice	60
	61	Distribution where estate comprises leaseholds, and in certain other cases	61
	61A	Personal liability of legal representative or trustee	62
	62	Notice	62
	63	Advice	62
Division 3—Delegation
	64	Execution of trust	63
	65	Consent to exercise of trust or power	65
	66	Persons dealing with delegate	65
	67	Power of attorney	65
	68	Registration	65
Part 3—Powers of the Court
Division 1—New trustees and vesting orders
Appointment of new trustees
	70	New trustees	66
Vesting orders
	71	Vesting orders	67
	72	Contingent rights of unborn persons	69
	73	Infant beneficiary	69
	74	Mortgagee under disability	69
	75	Deceased mortgagee	69
	76	Sale or mortgage of land	70
	77	Specific performance and other matters	71
	78	Effect of vesting order	71
	79	Appointment of person to convey	72
	80	Trustees of charities	73
Division 2—Dealings and improvements
	81	Advantageous dealings	73
	82	Improvements and repairs	74
	82A	Improvements and repairs without authority of the court	75
	84	Sale of infant’s property	76
Division 3—Relief and indemnity
	85	Excusable breaches of trust	76
	86	Indemnity for breach of trust	77
Division 4—Miscellaneous powers
	87	Division of chattels	77
	88	Decree in absence of a trustee	78
	89	Court considerations in action for breach of trust	78
	89A	Power of court to set off investment gains and losses	78
	90	Postponement of order	79
Division 5—Applications and orders
	91	Summons	79
	92	Persons entitled to apply	79
	93	Costs	80
Division 6—Charitable trusts
	94	Reference to order made under s 94A	80
	94A	Applications to court	80
	94B	Orders of court	81
	94C	Notice to Minister	81
	94D	Jurisdiction of Supreme Court	81
	94E	Action under order of court lawful	81
Part 4—Payment into Court
	95	Trustees	81
	96	Person liable to infant or person of unsound mind	82
	98	Money or securities	82
	99	Trustee	82
Part 5—Miscellaneous Provisions
	100	Escheat	82
	102	Compulsion to account	83
	103	Indemnity	83
	103A	Preamble to Charitable Uses Act 1601	84
part 6—transitional provisions
	104	Investments	84
	105	Application of certain sections to existing and new trusts	84
	106	Securities	84
	SCHEDULE
	preamble to charitable uses act 1601	86
	ENDNOTES
	1	About this republication	87
	2	About the republished Act	87
	3	Abbreviation key	87
	4	Table of legislation	88
	5	Table of amendments	89
	6	Table of earlier republications	91

Investment

As in force on
10 November 1999

AUSTRALIAN CAPITAL TERRITORY

Trustee Act 1925
An Act to amend and consolidate the law relating to trustees and trust property; to amend in certain respects the law relating to executors and administrators; to amend the Wills, Probate and Administration Act 1898, and certain other Acts; and for purposes connected therewith
1 	Short title
	This Act may be cited as the Trustee Act 1925.
Part 1—Interpretation
5 	Interpretation
	In the interpretation of this Act, unless the context or subject matter otherwise indicates or requires—
Act of Parliament means Act of the Parliament of the Commonwealth, or Act of the Parliament of the State, in force in the Territory, and includes an Act of the Territory.
administrator means an administrator within the meaning of the Administration and Probate Act 1929, and includes the public trustee acting as collector of an estate under Part 6 of that Act.
bank means a bank as defined in section 5 of the Banking Act 1959  of the Commonwealth.
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.
convey and conveyance, applied to any person, include the execution or doing by that person of every necessary or suitable assurance act and thing for conveying, assigning, appointing, surrendering, or otherwise transferring or disposing of property.
decree includes order.
executor means the executor to whom probate has been granted and includes an executor by right of representation.
government securities include government stocks, funds, bonds, debentures and Treasury bills.
instrument includes deed will and Act of Parliament.
joint tenant includes joint owner.
land includes tenements and hereditaments, corporeal and incorporeal, and every estate and interest therein, whether vested or contingent, freehold or leasehold, and whether at law or in equity, in severalty or otherwise.
legal representative means executor or administrator.
mortgage includes and relates to every estate and interest regarded in equity as merely a security for money.
mortgagee includes any person from time to time deriving title to the mortgage under the original mortgagee.
mortgagor includes any person from time to time deriving title to the equity of redemption under the original mortgagor, or entitled to redeem a mortgage, according to his or her estate interest or right in the mortgaged property.
order includes decree.
pay into court and payment into court, in relation to stocks and securities, include the deposit or transfer of the same in or into court.
possessed extends to receipt of income of, and to any vested estate less than a life estate, legal or equitable, in possession or expectancy, in any property.
property includes real and personal property, and any estate or interest in any property, real or personal, and any debt, and anything in action, and any claim or demand, and any other right or interest, whether in possession or not.
purchaser includes a lessee or mortgagee, or other person who for valuable consideration takes or deals for any property; and purchase has a meaning corresponding with that of purchaser; but sale means only a sale properly so-called.
right includes estate and interest.
security includes stocks, funds, and shares.
stock includes 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 corporation company or society, or by instrument of transfer, either alone or accompanied by other formalities, and any share or interest therein.
the Commonwealth means the Commonwealth of Australia.
the Crown Lands Acts mean, in relation to any land, such of the Acts of the State relating to Crown Land as are in force in the Territory and applicable to that land.
the Public Trustee means the Public Trustee for the Australian Capital Territory and includes—
	(a)	a person appointed to act as public trustee; and
	(b)	a deputy public trustee.
the registrar of the court means the registrar of the Supreme Court of the Australian Capital Territory.
the State means the State of New South Wales.
the Territory means the Territory accepted by the Commonwealth in pursuance of the Seat of Government Acceptance Act 1909 of the Commonwealth, and described in the Second Schedule to that Act, and includes the Territory accepted by the Commonwealth in pursuance of the Jervis Bay Territory Acceptance Act 1915 of the Commonwealth, and described in the agreement contained in the Schedule to that Act.
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.
trust does not include the duties incident to an estate conveyed by way of mortgage; but, with this exception, includes 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 legal representative of a deceased person.
trustee has a meaning corresponding with that of trust; and includes legal representative and the public trustee and a trustee company.
trustee company means a trustee company for the purposes of the Trustee Companies Act 1947.
trustee for sale means a trustee in whom a trust for sale or a power of sale of property is vested.
will includes codicil.
5A 	Notes
	A note in the text of this Act is explanatory and is not part of the Act.
Part 2—Trustees
Division 1—Appointment, retirement, disclaimer, and ceasing to be executor
Appointment
6 	New trustee
(1)		A new trustee may by registered deed be appointed in place of a trustee, either original or substituted, and whether appointed by the court or otherwise.
(2)		A new trustee may be so appointed in any of the following cases, namely:
	(a)	where a trustee is dead;
	(b)	where a trustee remains out of New South Wales for more than 1 year without having properly delegated the execution of the trust;
	(c)	where a trustee remains out of New South Wales for more than 2 years;
	(d)	where a trustee desires to be discharged from all or any of the trusts or powers reposed in or conferred on him or her;
	(e)	where a trustee refuses or is unfit to act in such trusts or powers, or is incapable of acting therein, or is an infant;
	(f)	where a trustee is removed under a power contained in the instrument creating the trust;
	(g)	where a trustee being a corporation is dissolved.
(2A)		A new trustee may not be appointed on the sole ground that a trustee remains out of New South Wales for more than 2 years if such trustee has delegated the execution of the trust pursuant to the Trustee (Emergency Provisions) Ordinance 1944, and such delegation remains in force.
(3)		The person to be appointed a trustee shall not be the person, or 1 of the persons, by whom or with whose consent the appointment is or may be made, unless the appointment is made with the consent of the court or of a majority of the beneficiaries.
(4)		The appointment may be made by the following persons, namely:
	(a)	by the person or persons nominated for the purpose of appointing new trustees by the instrument  (if any) creating the trust;
	(b)	if there is no such person, or no such person able and willing to act, then by the surviving or continuing trustees or trustee for the time being, or by the legal representative of the last surviving or continuing trustee.
(5)		The appointment may be made for the whole or any part of the trust property, and on the appointment—
	(a)	2 or more trustees may be appointed concurrently;
	(b)	the number of trustees may be increased, but not beyond 4;
	(c)	a separate set of trustees may be appointed for any distinct part of the trust property, that is to say, for any part for the time being held on trusts distinct from those relating to any other part or parts, notwithstanding that no new trustees or trustee are or is to be appointed for other parts, provided that the number of trustees in any separate set shall not exceed 4;
	(d)	any existing trustee may be appointed or remain 1 of the separate set of trustees;
	(e)	if only 1 trustee was originally appointed, then 1 separate trustee may be appointed for the distinct part;
	(f)	it shall not be obligatory to appoint more than 1 new trustee where only 1 trustee was originally appointed, or to fill up the original number of trustees where more than 2 trustees were originally appointed.
(6)		By the appointment a trustee in place of whom the new trustee is appointed shall be discharged from the trust, provided that, except where only 1 trustee was originally appointed, a trustee shall not be so discharged unless there will be left after the discharge at least 2 trustees, or the public trustee, or a trustee company, to perform the trust.
(7)		Any conveyance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be executed or done.
(8)		Every new trustee appointed under this section, as well before as after all the trust property becomes by law or by conveyance or otherwise vested in him or her, shall have the same powers authorities and discretions, and may in all respects act as if he or she had been originally appointed a trustee by the instrument  (if any) creating the trust.
(9)		The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator.
(10)		The provisions of this section relative to a person nominated for the purpose of appointing new trustees apply, whether the appointment is to be made in a case specified in this section or in a case specified in the instrument (if any) creating the trust, but where a new trustee is appointed under this section in a case specified in that instrument, the appointment shall be subject to the terms applicable to an appointment in that case under the provisions of that instrument.
(11)		The provisions of this section relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section, provided that—
	(a)	where there is in fact a continuing trustee, nothing in this section shall authorise a refusing or retiring trustee to act apart from the continuing trustee;
	(b)	if a refusing or retiring trustee does not act in the execution of the provisions of this section, the fact that he or she was willing to act shall not affect the validity of an appointment made by any other person.
(12)		Nothing in this section shall give power to appoint any person as an executor or administrator.
(13)		Except as otherwise provided in subsection (12), this section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(14)		This section applies to trusts created either before or after the commencement of this Act, and extends to the appointment of a new trustee where the case for the appointment arose before the commencement of this Act.
(15)		An appointment of a new trustee made before the commencement of this Act, under a power conferred by statute or by the instrument (if any) creating the trust, shall not be deemed to be invalid for the reason only that on the appointment the number of the trustees was increased or decreased, unless the increase or decrease was expressly forbidden by statute or by that instrument, but nothing in this subsection shall be deemed to invalidate any appointment of a new trustee made before the commencement of this Act.
7 	Additional trustee
(1)		A new trustee may by registered deed be appointed in addition to any existing trustee or trustees.
(2)		A new trustee may be so appointed in any of the following cases, namely:
	(a)	where a sole trustee other than the public trustee or a trustee company is or has been originally appointed to act in a trust;
	(b)	where, in the case of any trust, there are not more than 3 trustees, either original or substituted, and whether appointed by the court or otherwise, and none of the trustees is the public trustee or a trustee company.
(3)		The person to be appointed a trustee shall not be the person, or 1 of the persons, by whom the appointment is or may be made, unless the appointment is made with the consent of the court or of a majority of the beneficiaries.
(4)		The appointment may be made by the following persons, namely:
	(a)	by the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust;
	(b)	if there is no such person, or no such person able and willing to act, then by the trustee or trustees for the time being.
(5)		The appointment may be made for the whole or any part of the trust property, and on the appointment—
	(a)	2 or more trustees may be appointed concurrently;
	(b)	the number of trustees shall not be increased beyond 4.
(6)		Except as provided by the instrument (if any) creating the trust, or by any statutory enactment to the contrary, it shall not be obligatory to appoint any additional trustee.
(7)		Subsections 6 (7), (8), (10), (12) and (14) shall apply to the appointment of an additional trustee.
Retirement
8 	Retirement
(1)		A trustee may by registered deed retire from the trust without any new trustee being appointed in his or her place.
(2)		A trustee may not so retire, unless his or her co-trustees and such other person (if any) as is empowered to appoint trustees, consent by the same or other registered deed to the retirement, and there will be left after the retirement at least 2 continuing trustees, or the public trustee, or a trustee company, to perform the trust.
(3)		Trustees may retire concurrently.
(4)		By the retirement the trustee shall be discharged from the trust, provided that, if in order to vest any part of the trust property in the continuing trustees alone, it is necessary that it should be duly transferred, the retiring trustee shall not be discharged in respect of that part until it is duly transferred.
(5)		At any time after the registration of the deed or deeds of consent and retirement the continuing trustees shall have the same powers authorities and discretions, and may in all respects act as if the retiring trustee were wholly discharged from the trust.
(6)		Any conveyance or thing required for vesting the trust property in the continuing trustees alone shall be executed or done.
(7)		Nothing in this section shall authorise any retirement from the office of an executor or administrator.
(8)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(9)		This section applies to trusts created either before or after the commencement of this Act.
Vesting on appointment and retirement
9 	Vesting
(1)		Where a new trustee is appointed, the execution and registration of the deed of appointment shall without any conveyance, except as otherwise provided in this section, vest in the persons who become and are the trustees for performing the trust, as joint tenants and for the purposes of the trust, the trust property for which the new trustee is appointed.
(2)		Where a trustee retires, the execution and registration of the deed or deeds of consent and retirement shall without any conveyance, except as otherwise provided in this section, vest in the continuing trustees alone as joint tenants and for the purposes of the trust, all the trust property which is jointly vested in the continuing trustees and the retiring trustee.
(3)		Land which is subject to the provisions of the Land Titles Act 1925, the Real Property Act 1900, the Crown Lands Acts or the Mining Act 1930, does not, under this section, vest until—
	(a)	the appropriate transfer is registered so that the land is duly transferred; or
	(b)	an entry of the vesting of the land is made in the proper register kept under the provisions of the Act, Acts or ordinance to which the land is subject.
(3A)		For the purposes subsection (3), an entry of the vesting of land has the same effect as the registration of a transfer of the land.
(4)		Property—
	(a)	which is comprised in a mortgage for securing money subject to the trust, not being—
	(i)	land subject to the provisions of the Land Titles Act 1925, or the Real Property Act 1900; or
	(ii)	land conveyed on trust for securing debentures or debenture stock; or
	(b)	in respect of which an Act or ordinance in force in the place where the property is situate, not being an Act or ordinance referred to in subsection (3), requires a conveyance to be registered;
does not, under this section, vest until the appropriate transfer is registered so that the property is duly transferred.
(5)		Property that is only transferable—
	(a)	in books kept by a corporation, company or other body; or
	(b)	in the manner directed by or under a law in force in the place where the property is situate;
does not, under this section, vest until it is duly transferred.
(6)		In the case of land held under a lease which contains any covenant condition or agreement against assignment or disposing of the land without license or consent, the land shall not vest until it is duly transferred, unless—
	(a)	before the execution of the deed of appointment, or the deed or deeds of consent and retirement, as the case may be, the requisite license or consent to the assignment or disposition has been obtained; or
	(b)	by virtue of any statute or rule of law the vesting would not operate as a breach of covenant or give rise to a forfeiture.
	In this subsection—
lease includes an underlease and an agreement for a lease or underlease.
(7)		If any property does not vest under this section until transfer or registration, the execution and registration of the deed of appointment, or of the deed or deeds of consent and retirement, as the case may be, shall nevertheless vest the right to call for a transfer of the property, and to sue for or recover the property.
(8)		This section extends to an appointment by deed, or a retirement by deed, under the provisions of the instrument (if any) creating the trust.
(9)		This section applies to trusts created either before or after the commencement of this Act.
Disclaimer, and ceasing to be executor
10 	Renunciation of probate
(1)		If a person who is appointed by will both executor and trustee thereof renounces probate, or after being duly cited fails to apply for probate, the renunciation or failure shall be deemed to be  a disclaimer of the trust contained in the will.
(2)		Where—
	(a)	such a person renounces probate or fails, after being duly cited, to apply for probate; or
	(b)	such a person dies before probate is granted to him or her; or
	(c)	such a person, instead of applying for probate—
	(i)	requests the public trustee in writing to apply for an order under section 88 of the Administration and Probate Act 1929; or
	(ii)	authorises a trustee company to apply for administration with the will annexed;
and where the court grants to the public trustee an order under that section to collect and administer the estate of the person or administration with the will of the person annexed is granted to a trustee company, the public trustee or the trustee company, as the case may be, shall, by virtue of the order or grant and without further appointment be deemed to be appointed trustee of the will in the place of the person appointed trustee by the will.
(3)		Where—
	(a)	under section 7 of the Trustee Companies Act 1947, a trustee company is authorised to apply for probate of a will in place of a person who was, by the will, appointed both executor and trustee of the will; and
	(b)	probate of that will is granted to the trustee company;
the trustee company shall, by virtue of the grant and without further appointment, be deemed to be appointed trustee of the will in place of that person.
(4)		Where—
	(a)	the court grants administration with the will annexed to a trustee company instead of granting probate of the will to a person who was, by the will, appointed both executor and trustee of the will; or
	(b)	under section 14 of the Trustee Companies Act 1947, an executor who was, by a will, appointed both executor and trustee of the will, with the consent of the court, appoints a trustee company to perform and discharge the acts and duties of that executor;
the trustee company shall, by virtue of the appointment, be deemed to be appointed trustee or 1 of the trustees, as the case may be, of the will.
(5)		This section applies only to such a renunciation, failure, grant or appointment after the commencement of this Act.
11 	Ceasing to be executor
(1)		If any property is vested in any person as executor of a will under which he or she is the trustee of the property or is beneficially entitled thereto, such person may, at any time after all the executorial duties with respect to the property have been duly performed, declare by registered instrument in writing that he or she has ceased to hold the property as executor and that he or she holds the same as trustee or as beneficiary, as the case may be.
(2)		Where a declaration is so made, the property shall, except as otherwise provided in this section, be deemed to be held in accordance with the declaration.
(3)		In the case of land subject to the provisions of the Real Property Act 1900, or the Land Titles Act 1925—
	(a)	where a declaration is so made that the executor holds as trustee—the property shall not be deemed to be so held until the registrar-general for the State or the registrar-general for the Territory, as the case may be, enters a caveat forbidding the registration of any instrument not in accordance with the trusts and provisions declared and contained in the will so far as concerns the land affected by the declaration;
	(b)	where a declaration is so made that the executor holds as beneficiary—the property shall not be deemed to be so held until the Registrar-General for the State or the Registrar-General for the Territory, as the case may be, withdraws any inconsistent caveat.
(4)		This section applies to wills made either before or after the commencement of this Act, and whether the executorial duties have been performed before or after the commencement of this Act.
Registration
12 	Registration
(1)		Any instrument by which a new trustee is appointed, or by which a trustee retires or disclaims, or by which the executor declares that he or she holds as trustee or as beneficiary, as the case may be, shall be deemed not to be registered for the purposes of this Act unless it has been registered under the Registration of Deeds Act 1957.
(2)		This section extends to an appointment or retirement, whether under this Part or under the provisions of the instrument creating the trust or otherwise, and to a consent to an appointment or retirement.
(3)		This section applies whether the trust does or does not relate to land subject to the provisions of the Land Titles Act 1925 or the Real Property Act 1900.
(4)		In the case of land subject to the provisions of the Land Titles Act 1925, where an appointment or retirement or an instrument by which an executor declares that he or she holds as trustee or as beneficiary, as the case may be, is registered, the Registrar-General for the Territory is hereby authorised and directed to make an entry of the vesting of the trust property or to enter vary and withdraw caveats as may be proper in the circumstances.
(4AA)		However, the Registrar-General for the Territory shall not be bound so to do until a written request is made to him or her by the persons in whom the property is to be vested, such evidence is given as he or she may reasonably require, and such notice (if any) is given to any other person as he or she may direct.
(4A)		Where an instrument specified in subsection (1) affects land subject to the provisions of the Real Property Act 1900 or the Crown Lands Acts or affects lands the title to which is registered under the provisions of the Registration of Deeds Act 1897, the instrument shall be deemed not to have any force and effect in relation to that land—
	(a)	until the instrument is registered in the office of the Registrar-General for the State in the manner provided by the law of the State for the registration of instruments of a similar nature; and
	(b)	where the land affected is subject to the provisions of the Real Property Act 1900—until the Registrar-General for the State has, in the manner prescribed by or for the purposes of that Act, made an entry of the vesting of the land or has entered, varied or withdrawn such caveats as he or she deems proper in the circumstances.
(5)		Nothing in this section shall prevent an appointment retirement disclaimer or other instrument from being registered under any law now in force.
(6)		This section applies to instruments executed either before or after the commencement of this Act.
13 	Protection of purchasers
(1)		A statement contained in any registered deed by which a new trustee is appointed, to the effect that a trustee has remained out of New South Wales for more than 1 year without having properly delegated the execution of the trust, or has remained out of New South Wales for more than 2 years and a proper delegation, by the trustee, of the execution of the trust under the Trustee (Emergency Provisions) Ordinance 1944 is not in force, or refuses or is unfit to act, or is incapable of acting, shall, in favour of a subsequent purchaser in good faith, be conclusive evidence of the matter so stated upon any question as to the validity of the appointment and of any vesting consequent thereon.
(2)		A statement contained in any registered instrument by which an executor declares that he or she holds any property as trustee or as beneficiary, as the case may be, to the effect that all the executorial duties with respect to the property have been duly performed, shall in favour of a subsequent purchaser in good faith be conclusive evidence of the matter so stated upon any question as to the capacity in which the property was held.
(3)		The protection afforded by this section to a purchaser in good faith extends to the Registrar-General for the Territory when registering or certifying title.
(4)		This section applies to deeds executed either before or after the commencement of this Act.
Division 2—Powers and duties
Investment
14 	Powers of investment
	A trustee may, unless expressly forbidden by the instrument  (if any) creating the trust—
	(a)	invest trust funds in any form of investment; and
	(b)	vary an investment at any time.
14A 	Duties of trustee in relation to powers of investment
(1)		This section has effect subject to the instrument  (if any) creating the trust.
(2)		A trustee shall, in exercising a power of investment—
	(a)	if the trustee’s profession, business or employment is or includes acting as a trustee or investing money on behalf of other persons—exercise the care, diligence and skill that a prudent person engaged in that profession, business or employment would exercise in managing the affairs of other persons; or
	(b)	if the trustee is not engaged in such a profession, business or employment—exercise the care, diligence and skill that a prudent person would exercise in managing the affairs of other persons.
(3)		A trustee shall exercise a power of investment in accordance with any provision of the instrument  (if any) creating the trust that is binding on the trustee and requires the trustee to obtain a consent or approval in relation to trust investments.
(4)		A trustee shall, at least once a year, review the performance (individually and as a whole) of trust investments.
14B 	Law and equity preserved
(1)		Any rule or principle of law or equity that imposes a duty on a trustee exercising a power of investment continues to apply except to the extent that it is inconsistent with this or any other Act or with the instrument  (if any) creating the trust.
(2)		A duty mentioned in subsection (1) includes the following:
	(a)	a duty to exercise the powers of a trustee in the best interests of all present and future beneficiaries of the trust;
	(b)	a duty to invest trust funds in investments that are not speculative or hazardous;
	(c)	a duty to act impartially towards beneficiaries and different classes of beneficiaries;
	(d)	a duty to take advice.
(3)		If a provision in an instrument creating a trust purports to exempt, indemnify or limit the liability of a trustee in relation to a breach of trust, any rule or principle of law or equity that relates to the provision continues to apply.
(4)		If a trustee is under a duty to take advice, the reasonable costs of obtaining the advice are payable out of trust funds.
14C 	Exercise of power of investment
(1)		Without limiting the matters that a trustee may take into account when exercising a power of investment, a trustee shall, so far as they are appropriate to the circumstances of the trust  (if any), have regard to the following matters:
	(a)	the purposes of the trust and the needs and circumstances of the beneficiaries;
	(b)	the desirability of diversifying trust investments;
	(c)	the nature of, and the risk associated with, existing trust investments and other trust property;
	(d)	the need to maintain the real value of the capital or income of the trust;
	(e)	the risk of capital or income loss or depreciation;
	(f)	the potential for capital appreciation;
	(g)	the likely income return and the timing of income return;
	(h)	the length of the term of the proposed investment;
	(i)	the probable duration of the trust;
	(j)	the liquidity and marketability of the proposed investment during, and at the end of, the term of the proposed investment;
	(k)	the aggregate value of the trust estate;
	(l)	the effect of the proposed investment in relation to the tax liability of the trust;
	(m)	the likelihood of inflation affecting the value of the proposed investment or other trust property;
	(n)	the costs (including commissions, fees, charges and duties payable) of making the proposed investment;
	(o)	the results of a review of existing trust investments.
(2)		A trustee may, having regard to the size and nature of the trust—
	(a)	obtain and consider independent and impartial advice reasonably required for the investment of trust funds or the management of the investment from a person whom the trustee reasonably believes to be competent to give the advice; and
	(b)	pay out of trust funds the reasonable costs of obtaining the advice.
(3)		A trustee shall comply with this section unless expressly forbidden by the instrument  (if any) creating the trust.
14D 	Powers of trustee in relation to securities
(1)		If securities of a body corporate are subject to a trust, the trustee may concur, in the same way as if the trustee were beneficially entitled to the securities, in any scheme or arrangement—
	(a)	for or arising out of the reconstruction, reduction of capital or liquidation of, or the issue of shares by, the body corporate; or
	(b)	for the sale of all or part of the property and undertaking of the body corporate to another body corporate; or
	(c)	for the acquisition of securities of the body corporate, or of control of the body corporate, by another body corporate; or
	(d)	for the amalgamation of the body corporate with another body corporate; or
	(e)	for the release, modification or variation of rights, privileges or liabilities attached to all or any of the securities.
(2)		The trustee may accept instead of, or in exchange for, the securities subject to the trust securities of any denomination or description of another body corporate party to the scheme or arrangement.
(3)		If a conditional or preferential right to subscribe for securities in a body corporate is offered to a trustee in relation to a holding in the body corporate or another body corporate, the trustee may, for all or any of the securities—
	(a)	exercise the right and apply capital money subject to the trust in payment of the consideration; or
	(b)	assign to any person, including a beneficiary under the trust, the benefit of the right, or the title to the right, for the best consideration that can be reasonably obtained; or
	(c)	renounce the right.
(4)		A trustee accepting or subscribing for securities under this section is, for the purposes of any provision of this Division, exercising a power of investment.
(5)		A trustee may keep securities accepted or subscribed for under this section for any period for which the trustee could properly have kept the original securities.
(6)		The consideration for an assignment made under paragraph (3) (b) is to be held as capital of the trust.
(7)		This section applies in relation to securities subject to the instrument  (if any) creating the trust.
14E 	Power to buy house as residence for beneficiary
(1)		Without limiting section 14C and subject to the instrument  (if any) creating the trust, a trustee may—
	(a)	buy a house for a beneficiary to use as a residence; or
	(b)	enter into any other agreement or arrangement to secure for a beneficiary a right to use a house as a residence.
(2)		Despite the terms of the instrument  (if any) creating the trust, a trustee may keep, as part of the trust property, a house for a beneficiary to use as a residence if to do so would not unfairly prejudice the interests of other beneficiaries.
(3)		If a house is bought, kept or otherwise secured for use by a beneficiary as a residence, the house may be made available to the beneficiary on the terms, consistent with the trust and the beneficiary’s interest in the trust, that the trustee considers appropriate.
(4)		The trustee may keep a house, or any interest or rights in relation to a house, secured for use by a beneficiary under this section after the beneficiary’s use of the house as a residence has finished.
(5)		In this section—
house includes—
	(a)	any building or part of a building designed, or converted or capable of being converted, for use as a residence; and
	(b)	any amenities or facilities for use in association with the use of a house.
14F 	Investment in securities under RITS system
(1)		A chose in action arising under the RITS system that entitles its holder to a security of a particular description (the underlying security) is, for this Act and the instrument creating a trust, taken to be the same in all respects as the underlying security.
Note	A chose in action is an intangible personal property right recognised and protected by the law.  Examples include debts, money held at a bank, shares, rights under a trust, copyright, and the right to sue for breach of contract.
(2)		Accordingly, the holding or acquisition by a trustee of such a chose in action is to be regarded as an investment by the trustee in the underlying security.
(3)		It does not matter that the right conferred by the chose in action is a right in relation to securities of a particular description and not in relation to particular securities.
(4)		This section applies only to the extent that the instrument creating the trust does not expressly forbid its application.
(5)		In this section—
RITS system means the Reserve Bank Information and Transfer System operated by the Reserve Bank of Australia, as operating from time to time.
17 	Accepting a short title
(1)		A trustee shall not be chargeable with breach of trust upon the ground only that in effecting the purchase of or in lending money upon the security of any property he or she has accepted a shorter title than the title which a purchaser is, in the absence of a special condition, entitled to require, if in the opinion of the court the title accepted be such as a person acting with prudence and caution would have accepted.
(2)		This section extends to transfers of existing securities as well as to new securities.
(3)		This section applies to investments made either before or after the commencement of this Act.
18 	Ratio of loan to value
(1)		A trustee lending money on the security of any property on which he or she can lawfully lend shall not be chargeable with breach of trust by reason only of the proportion borne by the amount of the loan to the value of the property at the time when the loan was made, provided that the loan was made in accordance with this section.
(2)		A loan shall be deemed not to have been made by a trustee in accordance with this section—
	(a)	unless the trustee acts upon a report of the value of the property made by a person reasonably believed by the trustee to be a competent valuer and instructed and employed by the trustee independently of any owner of the property, whether the valuer carries on business in the locality where the property is situated or elsewhere; and
	(b)	unless the loan is made upon the advice, expressed in the report, of the valuer; and
	(c)	where the loan is made on the security of land comprised in a lease granted under the Leases Act 1918—unless the amount of the loan does not exceed 2 equal third parts of the value, as stated in the report, (less any moneys due and payable by the lessee to the Territory or Commonwealth in accordance with the lease) of the interest of the lessee in the fixtures, erections and improvements which are on the land comprised in the lease and of which the Territory or Commonwealth has covenanted to pay the value to the lessee; and
	(d) 	except as provided in paragraph (c)—unless the amount of the loan does not exceed 2 equal third parts of the value of the property as stated in the report.
(5)		This section extends to transfers of existing securities as well as to new securities.
(6)		This section applies to investments made either before or after the commencement of this Act.
19 	Loss on authorised security 
(1)		If a trustee improperly advances an amount of trust money on a mortgage security that would, at the time of investment, be a proper investment for a smaller amount, the trustee is liable to make good only the difference between the amounts with interest.
(2)		This section extends to transfers of existing mortgages as well as to new mortgages.
(3)		This section applies to investments made either before or after the commencement of this Act.
20 	Release of part of the security
(1)		Where any property is held by a trustee by way of security and the trustee has power under this Act or otherwise to invest on mortgage and to vary investments, the trustee—
	(a)	may release part of the property from the mortgage, whether any part of the mortgage debt is repaid or not, provided that the unreleased part of the property would, at the time, be a proper investment in all respects for the amount remaining unpaid;
	(b)	may, on a sale by the mortgagor of part of the mortgaged property and on the receipt by the trustee of the whole of the purchase money thereof after deduction of the expenses of the sale, release such part from the mortgage.
(2)		A subsequent purchaser of the released part of the property, or the Registrar-General for the Territory, shall not be concerned to inquire whether the release was authorised by this section.
(3)		This section applies to securities created either before or after the commencement of this Act.
21 	Arrangement with company
(1)		Where any security of a company is held by a trustee, and the trustee can lawfully hold or retain the same, the trustee may, in like manner as if he or she were beneficially entitled to the security, concur in any scheme or arrangement—
	(a)	for the reconstruction of the company; or
	(b)	for the amalgamation of the company with any other company; or
	(c)	for the sale of all or any part of the property and undertaking of the company to any other company; or 
	(d)	for the release modification or variation of any rights privileges or liabilities attached to the security.
(2)		In lieu of or exchange for the security the trustee may accept any security of any denomination or description of the reconstructed or new or purchasing company.
(3)		The trustee shall not be responsible for any loss occasioned by any act or thing so done in good faith, and may hold and retain any security so accepted in like manner as he or she could have done if the same had been an investment authorised by the instrument (if any) creating the trust or by law.
(4)		The powers conferred by this section shall be exercisable subject to the consent of any person whose consent to a change of investment is required by the instrument (if any) creating the trust or by law.
(5)		Anything done by a trustee before the commencement of this Act which would have been authorised by this section if then in force shall be deemed to have been and is hereby authorised by this Act.
(6)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(7)		This section applies to trusts created either before or after the commencement of this Act.
22 	New shares in a company
(1)		Where a preferential right to subscribe for a security in a company is offered to a trustee in respect of any holding in the company, he or she may—
	(a)	exercise the right and apply capital money subject to the trust in payment of the consideration; or
	(b)	renounce the right; or
	(c)	assign the benefit of the right for the best consideration that can reasonably be obtained to any person, including a beneficiary under the trust.
(2)		Where a trustee assigns the benefit of the right the consideration received by him or her for the assignment shall be held as capital money of the trust.
(2A)		In any case in which the preferential right in subsection (1) referred to is offered to him or her the trustee may in any case in which the shares the subject matter of the right are subject to a special or reserve liability, whether under the provisions of subsection 188 (2) of the Corporations Law, or otherwise, in the event of the winding-up of the company exercise the right and hold the shares as if they were part of his or her original holding in the company.
(3)		The trustee shall not be responsible for any loss occasioned by any act or thing so done in good faith.
(4)		The powers conferred by this section shall be exercisable subject to the consent of any person whose consent to a change of investment is required by law or by the instrument (if any) creating the trust.
(5)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(6)		This section applies to trusts created either before or after the commencement of this Act.
23 	Calls on shares
(1)		A trustee may apply capital money subject to a trust in payment of the calls on any shares subject to the trust.
(2)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(3)		This section applies to trusts created either before or after the commencement of this Act.
24 	Accrued interest on debentures or stock sold or purchased
(1)		Where any payment received by a trustee in respect of a sale of debentures or inscribed stock bearing interest at a fixed rate shall be or include payment for the right to receive any interest accrued from the debentures or stock at the time of the sale, though the interest may not then be due, the amount of the accrued interest shall for the purposes of the trust be deemed to have been received as interest in respect of the period during which the interest so accrued.
(2)		Where any payment made by a trustee in respect of a purchase of any debentures or inscribed stock bearing interest at a fixed rate shall be or include payment for the right to receive any interest accrued from the debentures or stock at the time of the purchase, though the interest may not then be due, the amount of the accrued interest when received shall for the purposes of the trust be deemed to have been received as purchase money repaid.
(5)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(6)		This section applies to trusts created either before or after the commencement of this Act.
25 	Continued holding
(1)		A trustee shall not be liable for breach of trust by reason only of his or her continuing to hold an investment which has ceased to be an investment authorised by the instrument (if any) creating the trust or by law.
(2)		This section applies to investments made either before or after the commencement of this Act.
Sale and other dealings
26 	Powers incident to sale
(1)		A trustee for sale may—
	(a)	sell all or any part of the trust property;
	(b)	sever and sell fixtures apart from the balance of the property;
	(c)	grant and sell any easement right or privilege of any kind over or in relation to the property;
	(d)	impose, reserve or make binding, as far as the law permits, by covenant, condition or other means, on the whole or any part of the trust property that remains unsold, or on any property sold and on the purchaser of that property, a restriction or reservation—
	(i)	with respect to building on, or other user of, and;
	(ii)	with respect to mines, minerals or any other thing; or
	(iii)	for the purpose of the more beneficial working of mines and minerals;
	(da)	sell the whole or part of the trust property, or sell mines and minerals apart from the surface of land, and in any such case the sale may be either with or without—
	(i)	a grant or reservation of rights of way, rights of water, easements, rights, and privileges for or connected with building or other purposes in relation to the whole or any part of the trust property that remains unsold or to any property sold;
	(ii)	an exception or reservation of all or any of the mines and minerals in or under the trust property;
	(iii)	a grant or reservation of powers of working, way-leaves, rights of way, rights of water and drainage and other powers, easements rights, and privileges for or connected with mining purposes in relation to the whole or part of the trust property that remains unsold or to any property sold; and
	(iv)	a covenant by the purchaser of land to expend money on the land; or
	(db)	lay out and make such roads, streets and ways, to be dedicated to the public or not, and grant such easements, rights of way or rights of drainage over those roads, streets and ways, as the circumstances of the case require and the trustee thinks fit;
	(e)	join with any other person in doing anything under any of the preceding paragraphs;
	(f)	pay or apply capital money subject to the trust for any of the purposes mentioned in this subsection.
(2)		The sale may be subject to any such conditions respecting title or evidence of title or other matter as the trustee thinks fit, and may be—
	(a)	either subject to prior charges or not;
	(b)	either together or in lots, in subdivision or otherwise;
	(c)	by public auction or by private contract.
(3)		The trustee may vary any contract for sale, buy in at any auction, rescind any contract for sale and resell, without being answerable for any loss.
(4)		If the trustee joins with any other person in selling, the purchase money shall be apportioned in or before the contract of sale, and a separate receipt shall be given by the trustee for the apportioned share.
(4A)		A contravention of subsection (4) shall not invalidate or be deemed to have invalidated any instrument intended to affect or evidence the title to any land.
(5)		This section applies only if and as far as a contrary intention is not expressed in the instrument creating the trust or power, and shall have effect subject to the terms of that instrument and the provisions therein contained.
(6)		This section applies to trusts or powers created either before or after the commencement of this Act.
27 	Duration of trust or power to sell
(1)		Where the instrument creating a trust or power to sell property does not expressly limit the duration of the trust or power, the trustee may, if so requested in writing by any beneficiary, sell the property under the authority conferred by this section and shall be deemed to be a trustee for sale accordingly, notwithstanding any lapse of time or that all the beneficiaries are absolutely entitled to the property in fee simple or full ownership in possession and are free of any incapacity, but in all other respects the authority conferred by this section shall be subject to any restrictions to which the power or trust created by the instrument is subject.
(2)		Nothing in this section shall affect any trust or power to sell which is for the time being in existence under the instrument creating the trust or power.
(3)		This section applies only if and as far as a contrary intention is not expressed in the instrument creating the trust or power and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(4)		This section applies to trusts or powers created either before or after the commencement of this Act.
27B 	Postponement of sale
(1)		A power to postpone sale shall be implied in every trust for sale, unless a contrary intention appears.
(2)		Where there is a power to postpone sale, then (subject to any express direction to the contrary in the instrument (if any) creating the trust for sale) the trustee for sale shall not be liable in any way for postponing the sale, in the exercise of his or her discretion, for any indefinite period; nor shall a purchaser be concerned in any case with any directions respecting the postponement of sale.
(3)		The provisions of subsections (1) and (2) apply to trusts created either before or after the commencement of this Act.
(4)		Where a disposition or settlement coming into operation after the commencement of this Act contains a trust either to retain or sell any property, the same shall be construed as a trust to sell the property with power to postpone the sale.
27C 	Purchaser under a trust for sale
(1)		A trust for sale shall, so far as regards the safety and protection of any purchaser, be deemed to subsist notwithstanding any lapse of time until the property is conveyed to or under the direction of the persons interested in the proceeds of sale, and in the case of land until the conveyance is duly registered.
(2)		Nothing in this section shall prevent any court from making an order restraining a sale.
(3)		This section applies to trusts created and to the execution thereof either before or after the commencement of this Act.
28 	Deferred payment on sale of land
(1)		A trustee for sale may sell land on terms of deferred payment or otherwise.
(2)		The terms of deferred payment may provide either for the purchase money being paid by instalments, or for the unpaid purchase money being secured by mortgage.
(3)		If the purchase money is to be paid by instalments, the terms upon which the land is sold shall, in addition to such other provisions as the trustee may deem proper, include provisions for giving effect to the following:
	(a)	that part of the purchase money shall be paid on the execution of the contract of sale;
	(b)	that the balance of the purchase money shall be payable in instalments, the first not later than 3 years from the date of the contract of sale and the others at intervals of not more than a year beginning from the date on which the first instalment is payable, and shall bear interest payable half-yearly or oftener on the amount from time to time unpaid.
No instalment which is made payable during the first 3 years from the date of the contract of sale shall be of an amount less than 5% of the purchase money, and all instalments which are made payable after the 3rd year from the date of the contract of sale shall be equal in amount;
	(c)	that the whole of the purchase money and interest shall be payable within a period not exceeding 10 years from the date of the contract of sale;
	(d)	that if any instalment or interest or part thereof is in arrear and unpaid for 6 months or for such less period as may be specified, the whole of the purchase money shall become due and payable.
(4)		If the unpaid purchase money is to be secured by mortgage, the terms upon which the land is sold shall, in addition to such other provisions as the trustee may deem proper, include provisions for giving effect to the following:
	(a)	that part of the purchase money shall be paid on the execution of the contract of sale;
	(b)	that the unpaid purchase money shall be secured by a registered mortgage of the land sold, with or without the security of any other property, and shall bear interest payable half-yearly or oftener on the amount from time to time unpaid;
	(c)	that the mortgage shall contain covenants by the mortgagor to pay the principal money secured and the interest thereon, to maintain and protect the property, and to keep all buildings (if any) thereon insured against loss or damage by fire to the full insurable value thereof;
	(d)	that the mortgagor shall not have power to make any lease of the property, unless the trustee consents in writing.
(5)		Whether the purchase money is to be paid by instalments or the unpaid purchase money is to be secured by mortgage, the trustee shall not be deemed to be lending money within the meaning of section 18 so as to be bound to act in accordance with the provisions of that section, and shall not be liable for any loss which may be incurred by reason only of the security being insufficient at the date of the mortgage.
(6)		The part of the purchase money to be paid on the execution of the contract of sale shall not be less than the sum which a person acting with prudence would, if the land were his or her own, have accepted in the circumstances in order to sell the land to the best advantage.
(7)		The trustee shall not be bound to require payment of any greater part of the purchase money before letting the purchaser into possession, or before conveying the land and taking a mortgage back, than a person acting with prudence would, if the land were his or her own, have considered as sufficient, provided that the trustee shall not convey the land and take a mortgage back until at least 1/10 part of the purchase money has been paid.
(8)		Notwithstanding that the purchase money is to be paid by instalments, the trustee may at any time after 1/10 of the purchase money has been paid convey the land and take a mortgage back in any case where a person acting with prudence would, if the land were his or her own, have been willing in the circumstances so to do, and in any such case the mortgage shall be in accordance with paragraphs (4) (b), (c) and (d), and the provisions of subsection (5) shall apply.
(9)		Any mortgage under this section may be for any period not exceeding 10 years from the date of the contract of sale.
(10)		The trustee may, on such terms (if any) as he or she deems proper, by writing waive or vary any right arising from failure to comply with any term of the contract of sale or of any mortgage under this section within the proper time.
(11)		Where the sale is made under the order of the court, the provisions of this section shall apply, unless the court shall otherwise direct.
(12)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(13)		This section applies to trusts created either before or after the commencement of this Act.
30 	Depreciatory conditions
(1)		Where a trustee sells subject to any condition which may have been unnecessarily depreciatory—
	(a)	the purchaser shall not be at liberty to make any objection to the title on that ground;
	(b)	the sale shall not be impeached by any beneficiary upon that ground, unless it also appears that the consideration for the sale was thereby rendered inadequate;
	(c)	the sale shall not, after the execution of the conveyance, be impeached as against the purchaser upon that ground, unless it appears that the purchaser was acting in collusion with the trustee at the time when the contract for sale was made.
(2)		This section applies to sales made either before or after the commencement of this Act.
31 	Sale of part of land
(1)		A trust or power to sell or dispose of land includes a trust or power to sell or dispose of part thereof, whether the division is horizontal, vertical, or otherwise.
(2)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust or power, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(3)		This section applies to trusts or powers created either before or after the commencement of this Act.
32 	Sale exchange and partition
(1)		Where a trustee is authorised by the instrument (if any) creating the trust or by law to dispose of land by way of sale exchange or partition, he or she may so dispose—
	(a)	of the land with or without an exception or reservation of all or any of the mines and minerals therein; or
	(b)	of any mines and minerals.
(2)		The disposition may be with or without a grant or reservation of powers of working, wayleaves, or rights of way, rights of water and drainage, and other powers, easements, rights, and privileges for or incident to or connected with mining purposes, in relation to the land or any part thereof, or any other land.
(3)		The exchange or partition may be made subject to and in consideration of the reservation of an undivided share in mines or minerals.
(4)		The exchange or partition may be made upon terms of giving or receiving any money for equality of exchange or partition.
(5)		For the purpose of completing the disposition the trustee may convey or otherwise dispose of the land either by way of revocation and appointment of the use or otherwise as may be necessary.
(6)		This section extends to any other person authorised to dispose of land by way of sale exchange or partition.
(7)		This section applies to trusts or powers created either before or after the commencement of this Act.
32A 	Power to purchase equity of redemption in lieu of foreclosure
	A trustee unless expressly forbidden by the instrument (if any) creating the trust, may, in lieu of proceeding to foreclosure, purchase the equity of redemption of land in the Commonwealth the subject of a mortgage held by the trustee under which default has been made where the moneys expended in such purchase are subject to the same trusts as the mortgage debt:  Provided that in no case shall the moneys paid by way of consideration for such purchase exceed 5% of the amount due under the mortgage.
33 	Sale after right of redemption barred
(1)		Where any property is vested in a trustee by way of security, and the property becomes discharged from the right of redemption, the trustee shall hold the property on trust for sale, with power to postpone the sale for such a period as he or she may think proper.
(2)		The net proceeds of sale, after payment of costs and expenses, shall be applied in like manner as the mortgage debt, if received, would have been applicable, and the income of the property until sale shall be applied in like manner as the interest, if received, would have been applicable.
(3)		This section shall not affect any rule of law relating to the apportionment of capital and income between tenant for life and remainderman.
(4)		This section shall not affect the right of any person to require that, instead of a sale, the property shall be conveyed to him or her or in accordance with his or her directions.
(5)		This section applies whether the property is discharged from the right of redemption by virtue of the statutes of limitation or of an order for foreclosure or purchase of the equity of redemption or otherwise.
(6)		This section extends to securities by way of mortgage of land under the Land Titles Act 1925, or under the Real Property Act 1900, and, in relation to such a security, an order for foreclosure includes an order for foreclosure under that Act or that Act, as the case may be.
(7)		This section applies whether the property has become or becomes discharged from the right of redemption before or after the commencement of this Act.
34 	Release of equity of redemption in discharge of mortgage debt
(1)		Where an equity of a redemption is vested in a trustee and the mortgaged property is not of greater value than the amount of the mortgage debt, the trustee may release the equity of redemption to the mortgagee in discharge of the mortgage debt or part thereof.
(2)		The trustee shall not be chargeable with breach of trust nor shall the release be impeached by any beneficiary upon the ground only that the mortgaged property was of greater value than the amount of the mortgage debt or of the part thereof discharged, provided that the trustee has acted bona fide and on the advice of a person whom he or she reasonably believed to be a competent valuer instructed and employed independently of the mortgagee, whether the valuer carried on business in the locality where the property is situated or elsewhere.
(3)		A subsequent purchaser or the Registrar-General for the Territory shall not be concerned to inquire whether the release was authorised by this section.
(4)		This section applies whether the equity of redemption vested in the trustee before or after the commencement of this Act.
35 	Surrender of onerous lease
(1)		Where a leasehold is vested in a trustee and the property is subject to onerous covenants of such a nature that it would not be in the interests of the beneficiaries to retain the property, the trustee may surrender or concur in surrendering the lease.
(2)		The trustee shall not be chargeable with breach of trust nor shall the surrender be impeached by any beneficiary upon the ground only that the covenants were not of such a nature, provided that the trustee has acted bona fide and on the advice of a person whom he or she reasonably believed to be a competent valuer instructed and employed independently of the lessor, whether the valuer carried on business in the locality where the property is situated or elsewhere.
(3)		A subsequent purchaser or the Registrar-General for the Territory shall not be concerned to inquire whether the surrender was authorised by this section.
(4)		This section applies whether the leasehold vested in the trustee before or after the commencement of this Act.
36 	Leasing
(1)		A trustee may make a lease of land in possession in any of the following cases, that is to say:
	(a)	where he or she holds the land with power to manage the same, or upon trust for sale with an express power to postpone the sale, the lease may be for any term not exceeding 5 years;
	(b)	where he or she holds the land without power to manage the same, or upon trust for sale without an express power to postpone the sale, the lease may be for any term not exceeding 3 years.
(2)		A trustee shall not be deemed to hold land with power to manage the same within the meaning of this section by reason only of the fact that it is proper to postpone sale in order to sell to the best advantage and in the meantime to manage the land.
(3)		Any lease which a trustee is authorised to make under this section or under the instrument (if any) creating the trust or power may—
	(a)	provide for a rent increasing at such times as may be specified in the lease;
	(b)	give an option of renewal, provided that the duration of the lease and any such renewal shall not in the aggregate exceed the term for which the trustee is authorised to make the lease.
(4)		If the land is the subject of a settlement within the meaning of Part 4 of the Conveyancing and Law of Property Act 1898, and there is any other person authorised by the settlement or by that Act to demise the land or any part thereof, this section shall not apply unless that person in writing authorises the trustee to make the lease.
(5)		A trustee making a lease under this section may execute such assurances and do such things as are necessary or proper to make the lease.
(5A)		A lease shall be deemed not to have been made under this section unless—
	(a)	it is made to take effect in possession not later than 3 months after its date; and
	(b)	it reserves the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but, subject to subsection (5B), without a fine being taken or the rent being made payable in advance except that the last payment of rent may be made payable on a day not more than 1 month before the expiration of the term of the lease; and
	(c)	it contains a condition of re-entry if the rent is not paid within a period specified in the lease, being a period not exceeding 30 days; and
	(d)	in the case of a lease of land subject to the provisions of the Land Titles Act 1925 that would not, unless registered under that Act, be valid as against a person claiming an interest in the land by virtue of a dealing registered subsequent to the execution of the lease—it is registered under that Act; and
	(e)	in the case of a lease other than a lease referred to in paragraph (d)—it is registered under the Registration of Deeds Act 1957; and 
	(f)	a duplicate or counterpart of the lease is executed by the lessee and delivered to the lessor.
(5B)		Where a trustee makes a lease of land on which are erected premises that are licensed under the Liquor Act 1929—
	(a)	a bonus or fine may be taken in respect of the lease; and
	(b)	if a bonus or fine is taken, the bonus or fine shall be dealt with by the trustee as though an amount ascertained by dividing the amount of the bonus or fine by the number of days contained in the term of the lease were rent received by the trustee under the lease in respect of each day of the term of the lease.
(5C)		The execution of a lease by the lessor is, in favour of the lessee and all persons deriving title under the lessee, evidence of the execution and delivery by the lessee of a duplicate or counterpart of the lease in pursuance of paragraph (5A) (f).
(5D)		A contract to make or accept a lease under this section may, if registered, be enforced by or against every person on whom the lease, if granted, would be binding.
(6)		This section shall not apply to a bare trustee for persons all of whom are entitled in possession and are free of any incapacity.
(7)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust or power, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(8)		This section applies to trusts created either before or after the commencement of this Act.
37 	Renewal of renewable leasehold
(1)		Where a leasehold for lives or for years is vested in a trustee and the lease is renewable from time to time, either under any covenant or contract, or by custom or usual practice, the trustee may obtain from time to time the renewal on the accustomed and reasonable terms.
(2)		If required in writing by any person having any beneficial interest present future or contingent in the leasehold, the trustee shall use his or her best endeavours to obtain from time to time the renewal on such terms.
(3)		The trustee may from time to time make or concur in making a surrender of the lease for the time being subsisting, and may do all such other acts as are requisite for the renewal.
(4)		If by the terms of the instrument (if any) creating the trust the person in possession for his or her life or other limited interest is entitled to enjoy the same without any obligation to renew or to contribute to the expense of renewal, this section shall not apply unless the consent in writing of that person is obtained to the renewal.
(5)		The trustee may pay or apply capital money subject to the trust for the purpose of obtaining the renewal.
(6)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(7)		This section applies to trusts created either before or after the commencement of this Act.
38 	Raising money
(1)		Where a trustee is authorised by the instrument (if any) creating the trust or by law to pay or apply capital money for any purpose or in any manner, he or she shall have and shall be deemed always to have had power to raise the money required by sale, conversion, calling in, or mortgage of all or any part of the trust property for the time being in possession held upon the same trusts as the capital money.
(1A)		Where a trustee holds land in respect of which moneys are due and payable for rates or taxes or in respect of which the trustee is under a statutory obligation to expend moneys and the trustee has no moneys subject to the same trusts as such land wherewith to pay such rates or taxes or discharge such statutory obligation the trustee shall have and shall be deemed always to have had power to raise the money required to make such payment or discharge such obligation by sale or mortgage of the whole or part of such land or by sale, conversion, calling in or mortgage of all or any part of the trust property for the time being in possession held upon the same trusts as such land.
(2)		This section shall not apply to a trustee of property held for charitable purposes.
39 	Protection of purchasers or mortgagees
	No purchaser or mortgagee, paying or advancing money on a sale or mortgage purporting to be made under any trust or power vested in a trustee, shall be concerned to see that the money is wanted, or that no more than is wanted is raised, or to see to the application thereof.
39A 	Application of income by trustee/mortgagee in possession
(1)		In any case in which a trustee is entitled whether severally or as a co-mortgagee to a debt secured by a mortgage of land in trust as to the whole or part of such debt for persons by way of succession, and such trustee is at the commencement of this Act or at any time after such commencement becomes mortgagee in possession of the mortgaged land, the trustee shall apply the net income of the mortgaged land received by him or her after such commencement or after he or she becomes mortgagee in possession, as the case may be, as follows, namely:
	(a)	in discharge of all rents, taxes, rates and outgoings affecting the mortgaged land;
	(b)	in payment of the premiums on any insurances properly payable under the mortgage instrument or under any law in force in the Territory and the costs of executing necessary repairs;
	(c)	in keeping down all annual sums or other payments and the interest on all principal sums having priority to the mortgage in right he or she is in possession.
(1A)		Subject to the rights of the mortgagor such trustee shall hold the residue of the income so received by him or her upon the trusts to which such mortgage debt is subject.
(2)		The rents, taxes, rates, outgoings, premiums, costs, annual sums, payments and interest so to be discharged, kept down and paid shall be those accruing due—
	(a)	after the commencement of this Act where the trustee is in possession of the mortgaged land at such commencement;
	(b)	after the date of possession by the trustee, where the entry into possession is after the commencement of this Act.
(2A)		If at the commencement of this Act or on the date of possession by the trustee, as the case may be, any rents, taxes, rates, outgoings, annual sums, payments, interest or premiums mentioned in paragraph (1) (a), (b) or (c) were or are due and unpaid, and such of those rents, taxes, rates, outgoings, annual sums, payments and premiums as are periodical payments, were payable wholly or in part in respect of any period subsequent to such commencement or to such date of possession, as the case may be, then such lastmentioned rents, taxes, rates, outgoings, annual sums, payments and premiums shall, for the purpose of this section, be considered as accruing from day to day and shall be apportionable in respect of time accordingly.
(3)		On the recovery of the moneys secured by the mortgage whether in whole or in part, and whether by repayment or on realisation of the security or otherwise, such part of the income applied by the trustee in the payments specified in paragraphs (1) (a), (b) and (c) as would otherwise have been payable as interest to the person entitled to the interest of the mortgage debt shall as between the persons respectively entitled to the income and corpus of the mortgage debt be deemed to be arrears of interest and the amount received by the trustee shall be apportioned accordingly.
(4)		Notwithstanding anything in this section contained, the trustee may, if in the administration of the trust he or she deems it necessary so to do, apply income of the mortgaged property received by him or her after the commencement of this Act in payment of any rents, taxes, rates, outgoings, premiums, costs, annual sums, payments and interest affecting the mortgaged land other than those specified in subsection (2) but the person entitled to the interest on the mortgage debt shall be entitled to recoupment out of the capital of the mortgage debt of all payments made by the trustee under the authority conferred by this subsection.
39B 	Validation of certain payments by trustee/mortgagee in possession
	In any case in which, prior to the commencement of this Act, a trustee was entitled either severally or as a co-mortgagee to a debt secured by a mortgage of land in trust as to the whole or part of such debt for persons by way of succession and the trustee, having entered into possession of the mortgaged property, has, before such commencement, applied or shall, after such commencement apply bona fide the net income of the mortgaged property received by him or her before such commencement in payment of any rents, rates, taxes, insurance premiums, outgoings or annual sums on the mortgaged property or of the interest on prior incumbrances on the mortgaged property, or in executing necessary repairs thereto, then—
	(a)	the trustee shall not be liable for breach of trust by reason of his or her having so applied the income of the mortgaged property and shall not be liable personally to make any recoupment in respect of any income so applied by him or her before or after such commencement; and
	(b)	the person entitled to the income of the mortgage debt—
	(i)	shall not be entitled to any recoupment out of the capital of the mortgage debt of any moneys payable to him or her as interest and so applied by the trustee prior to 26 May 1933, except such part of such moneys as were applied by the trustee in payment of any rents, rates, taxes, insurance premiums, outgoings or annual sums accrued due prior to his or her possession, but such moneys, except such lastmentioned part  (if any), shall as between the persons respectively entitled to the income and capital of the mortgage debt be deemed to be arrears of interest and the amount of moneys secured by the mortgage recovered by the trustee whether by repayment or on realisation of the security or otherwise shall be apportioned accordingly;
	(ii)	shall be entitled to recoupment out of the capital of the mortgage debt of any moneys payable to him or her as interest and so applied by the trustee after 25 May 1933.
Property not in possession
40 	Powers
(1)		Where trust property consists of or includes any share or interest in property or the proceeds of the sale of property not vested in the trustee, or any other thing in action, the trustee on the same falling into possession, or becoming payable or transferable—
	(a)	may agree upon or ascertain the amount or value thereof or any part thereof in such manner as he or she may think fit; and
	(b)	may accept in or towards satisfaction thereof, at the market or current value, or upon any valuation or estimate of value which he or she shall think fit, any securities authorised by the instrument (if any) creating the trust or by law for the investment of money subject to the trust; and
	(c)	may allow any deductions for duties costs charges and expenses which he or she may think proper or reasonable; and
	(d)	may execute any release in respect of the premises, so as effectually to discharge all accountable parties from all liability in respect of any matters coming within the scope of such release.
The trustee shall not be responsible for any loss occasioned by any act or thing so done by him or her in good faith.
(2)		Unless and until required in writing so to do by some person beneficially interested under the trust or by the guardian of his or her person or estate, and unless also due provision is made to his or her satisfaction for payment of the costs of any proceedings required to be taken, the trustee shall not be under any obligation—
	(a)	to apply for any stop or other like order upon any securities or other property out of or on which such share or interest or other thing in action is derived payable or charged; or
	(b)	to take any proceedings on account of any act default or neglect on the part of the persons in whom the securities or other property or any of them or any part thereof are for the time being or had at any time been vested.
(3)		The trustee may if he or she thinks fit refer any of the matters mentioned in subsection (2) to the person beneficially entitled or to the guardian of his or her person or estate.
(4)		The trustee shall not be chargeable with breach of trust by reason of any omission in any of the matters mentioned in subsection (2), except when required and upon due provision made as therein mentioned.
(5)		Nothing in this section shall relieve a trustee of the obligation to get in and obtain payment or transfer of any such share or interest or other thing in action on the same falling into possession.
(6)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(7)		This section applies to trusts created either before or after the commencement of this Act.
Insurance
41 	Insurance
(1)		A trustee may insure against loss or damage, whether by fire or otherwise, any insurable property, and against any risk or liability against which it would be prudent for a person to insure if he or she were acting for himself or herself.
(2)		The insurance may be for any amount, provided that, together with the amount of any insurance already on foot, the total shall not exceed the insurable value or liability.
(3)		The premiums may be paid by the trustee out of the income of the property concerned or out of the income of any other property subject to the same trusts, without obtaining the consent of any person who may be entitled wholly or partly to the income.
(4)		This section applies if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(5)		This section applies to trusts created either before or after the commencement of this Act.
42 	Application of insurance money
(1)		Where a policy of insurance against the loss or damage of any property subject to a trust, whether by fire or otherwise, has been kept up under any trust in that behalf, or under any power statutory or otherwise, or in performance of any obligation statutory or otherwise, the money receivable by a trustee under the policy shall be capital money for the purposes of the trust.
(2)		If the money is receivable in respect of property held upon trust for sale, the same shall be held upon the trusts and subject to the powers and provisions applicable to money arising by a sale under the trust.
(3)		In any other case the money shall be held upon trusts corresponding as nearly as may be with the trusts affecting the property in respect of which it was payable.
(4)		The money or any part thereof may also be applied by the trustee or, if in court, under the direction of the court, in rebuilding, reinstating, replacing, or repairing the property lost or damaged.
(5)		Any such application by the trustees shall be subject to the consent of any person whose consent is required by the instrument (if any) creating the trust to the investment of money subject to the trust.
(6)		Nothing in this section shall prejudice or affect the right of any person to require the money or any part thereof to be applied in rebuilding, reinstating or repairing the property lost or damaged.
(7)		Nothing in this section shall prejudice or affect the rights of any mortgagee lessor or lessee, whether under any statute or otherwise.
(8)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(9)		This section applies to trusts and to policies created or effected either before or after the commencement of this Act, but only to money received after the commencement of this Act.
Maintenance, advancement, and protective trusts
43 	Maintenance and accumulation
(1)		Where any property is held in trust for a person who is for the time being an infant for any interest whatsoever, whether vested or contingent, and whether absolute or liable to be divested, the trustee may at his or her sole discretion pay to the parent or guardian (if any) of the infant, or to the person with whom the infant is for the time being residing, or otherwise apply the whole or any part of the income of the property, for or towards the maintenance education or benefit of the infant.
(2)		The power conferred by subsection (1) may be exercised whether there is any other fund applicable to the same purpose, or any person bound by law to provide for the maintenance or education of the infant, or not.
(3)		The power conferred by subsection (1) shall not prejudice or affect any prior interest in or charge over the property.
(3A)		Where the interest for which the property is held in trust for the infant is future or contingent, and the trust for the infant would not, apart from the provisions of this section, carry the intermediate income, and the same is not expressly or specifically disposed of but would pass to some other person in virtue only of an interest to which he or she is entitled under a residuary or a general gift in the instrument (if any) creating the trust, or in the absence of such a gift then as upon intestacy or as upon a resulting trust, the trust for the infant shall, during the infancy, if the interest of the infant so long continues, be deemed to carry the intermediate income, and the interest of such person shall not be deemed to be a prior interest within the meaning of this subsection.
(4)		During the infancy, if the interest of the infant so long continues, the trustee shall accumulate all the residue of the income in the way of compound interest by investing the same, and the resulting income thereof from time to time on securities on which he or she is by the instrument (if any) creating the trust, or by law authorised to invest the trust money.
(5)		During the infancy, if the interest of the infant so long continues, the trustee may at any time, if he or she thinks fit, apply the accumulations or any part thereof as if the same were income arising in the then current year.
(6)		In the following cases the trustee shall hold the accumulations absolutely for the infant, that is to say:
	(a)	if otherwise than by virtue of this section the infant is entitled to the income which has been accumulated;
	(b)	if under the provisions of the instrument (if any) creating the trust, the infant is entitled on attaining the age of 21 years or on the occurrence of some prior event to a vested interest, whether absolute or liable to be divested, in fee simple or in full ownership in the property from which the income arose, and the infant in fact becomes entitled to such vested interest.
(7)		Any accumulations held in trust in accordance with subsection (6) shall be so held without prejudice to any provision with respect thereto contained in any settlement made by the infant under any statute during his or her infancy.
(8)		Except in the cases mentioned in subsection (6), and notwithstanding that the person for whom the property is held in trust had a vested interest in the income by virtue of this section, the trustee shall hold the accumulations as an accretion to the capital of the property from which the accumulations arose, and as 1 fund with such capital for all purposes, and so that if such property is a settled estate within the meaning of Part 4 of the Conveyancing and Law of Property Act 1898, the accumulations shall be held on the same trusts as if the same were capital money arising.
(9)		This section extends to a vested annuity in like manner as if the annuity were the income of property held by a trustee in trust to pay the income thereof to the annuitant for the same period for which the annuity is payable, save that in any case accumulations made during the infancy of the annuitant shall be held in trust for the annuitant absolutely.
(10)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument, and to the provisions therein contained.
(11)		This section applies only where the instrument (if any) creating the trust comes into operation after the commencement of this Act.
(12)		Notwithstanding the provisions of section 5 of the Trustee Act 1957, section 18 of the Trustee Act 1898, in its application in the Territory, continues to apply in relation to a trust where the instrument (if any) creating the trust came into operation before the commencement of this Act.
44 	Advancement
(1)		Where under a trust a person is entitled to the capital of the trust property or any share thereof, the trustee may from time to time pay or apply any capital money subject to the trust, not exceeding altogether in amount   of the value of the property or share, for the advancement or benefit of such person or where such person is an infant, for the maintenance, education, advancement or benefit of such person in such manner as the trustee shall in his or her absolute discretion think fit.
(2)		The power conferred by this section may be exercised whether the person is entitled absolutely or contingently on his or her attaining any specified age or on the occurrence of any other event, or subject to a gift over on his or her death under any specified age or on the occurrence of any other event, and, notwithstanding that the interest of the person so entitled is liable to be defeated by the exercise of a power of appointment or revocation, or to be diminished by the increase of the class to which he or she belongs.
(3)		The power conferred by this section may be exercised whether the person is so entitled in possession or in remainder or reversion.
(4)		If the person is or becomes absolutely and indefeasibly entitled to a share in the trust property, the money so paid or applied shall be brought into account as part of such share.
(5)		No such payment or application shall be made so as to prejudice any person entitled to any prior life or other interest, whether vested or contingent, in the money paid or applied unless such person is in existence and of full age and consents in writing to the payment or application.
(6)		This section applies only where the trust property consists of money or securities or property held upon trust for sale calling in and conversion, and the money or securities or the proceeds of the sale calling in and conversion are not by a law in force in the Territory, or in equity, considered as land, or applicable as capital money for the purposes of Part 4 of the Conveyancing and Law of Property Act 1898.
(7)		This section applies only and if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(8)		This section applies to trusts created before the commencement of this Act and to trusts created after the commencement of this Act.
45 	Protective trusts
(1)		Income may be directed to be held ‘on protective trusts’ for the benefit of any person (in this section called the principal beneficiary) for the period of his or her life or for any less period, and where there is such a direction the income shall during the period (in this section called the trust period), and without prejudice to any prior interest, be held upon trust as provided in this section.
(2)		During the trust period, or until the trust of the income fails or determines during the subsistence of the trust period, the income shall be held upon trust for the principal beneficiary.
(3)		The trust of the income shall fail or determine in any of the following cases, as well as on the termination of the trust period, whichever first happens, that is to say, if the principal beneficiary does or attempts to do or suffers any act or thing or if any event happens whereby if the income were payable to the principal beneficiary absolutely, he or she would be deprived of the right to receive the same or any part thereof.
(4)		The trust of the income shall so fail or determine, whether the principal beneficiary does or attempts to do or suffers the act or thing before or after the termination of any prior interest.
(5)		The trust of the income shall not so fail or determine by reason of an advance under any statutory or express power.
(6)		If the trust of the income fails or determines during the subsistence of the trust period, the income shall during the residue of that period be held upon trust for the application thereof—
	(a)	for the maintenance, support, or otherwise for the benefit of all or any 1 or more exclusively of the other or others of the principal beneficiary and his or her wife or husband (if any) and his or her children or more remote issue (if any) as the trustee in his or her absolute discretion thinks fit; or
	(b)	if there is no wife husband or issue of the principal beneficiary in existence, then for the maintenance, support, or otherwise for the benefit of all or any 1 or more exclusively of the other or others of the principal beneficiary and the persons who would, if he or she were actually dead, be entitled to the trust property or the income thereof or of the annuity fund (if any) or arrears of the annuity, as the case may be, as the trustee in his or her absolute discretion thinks fit.
(7)		This section extends to an annuity or other periodical income payment directed to be held on protective trusts.
(8)		Any trust implied by this section may be set aside in any case where an express trust to the same effect might be set aside.
(9)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(10)		This section applies only to trusts created after the commencement of this Act.
Appropriation, and payment to the public trustee
46 	Appropriation
(1)		A trustee may appropriate any part of the property subject to the trust or of the real or personal estate of a testator or intestate in the actual condition or state of investment thereof in or towards satisfaction of a legacy or of any share or interest in the property or estate, whether settled or not, as to the trustee may seem just and reasonable, according to the respective rights of the persons interested in the property or estate, but—
	(a)	the appropriation shall not be made so as to affect prejudicially any specific gift devise or bequest; and
	(b)	the appropriation shall be made with the consent (if any) required by this section; and
	(c)	in making the appropriation the trustee shall have regard to the rights of any person who may thereafter come into existence or who cannot be found or ascertained at the time of the appropriation or as to whom it is uncertain at that time whether he or she is living or dead, and of any other person whose consent is not required by this section.
(2)		The power of appropriation conferred by this section shall extend and apply to—
	(a)	property over which a testator exercises a general power of appointment; and
	(b)	setting apart a fund to answer an annuity by means of an income of the fund or otherwise, provided that at the time of appropriation the fund would be sufficient, if it were invested in government securities of the Commonwealth of Australia at par, to provide an income exceeding the annuity by at least 15% thereof; and
	(c)	setting apart a sum of money in or towards the satisfaction of a legacy share or interest.
(3)		For the purpose of an appropriation under this section the trustee may ascertain and fix the value of the respective parts of the property or estate and the liabilities to which the property or estate is subject as the trustee may think fit, and shall for that purpose employ a duly qualified valuer in any case where such employment may be necessary.
(4)		An appropriation made pursuant to this section shall bind all persons interested in the property or estate, including the persons whose consent is not required, and to the extent to which the appropriation is made in or towards satisfaction of the legacy share or interest, the rights to which any person is entitled in virtue of the legacy share or interest shall be restricted to the part of the property or estate so appropriated and shall not extend to any other part thereof which may be dealt with or disposed of freed from any such rights.
(5)		An appropriation of property whether it is or is not an investment authorised by law or by the instrument (if any) creating the trust for the investment of money subject thereto, shall not, except as otherwise provided by this section, be made for the benefit of a person absolutely and beneficially entitled in possession, unless he or she is of full age and capacity and he or she consents in writing.
(6)		An appropriation shall not, except as otherwise provided in this section, be made in respect of any settled legacy share or interest, unless either the trustee thereof (if any) not being also the trustee making the appropriation, or the person who may for the time being be entitled to the income, consents in writing.
(7)		If the person whose consent is required under subsection (5) or (6), not being the trustee of a settled legacy share or interest—
	(a)	is an infant, the consent may be given on his or her behalf by his or her parents or parent with whom he or she resides or in whose custody he or she is, as the case may be, or by his or her testamentary or other guardian, or if there is no such parent or guardian, by the court; or
	(b)	is mentally incapable, the consent may be given on his or her behalf—
	(i)	by the guardian of the person, or the manager of the person’s property, under the Guardianship and Management of Property Act 1991; or
	(ii)	if there is no such guardian or manager—by the court; or
	(d)	is a person who cannot be found or ascertained, or as to whom it is uncertain whether he or she is living or dead, the consent may be given on his or her behalf by the court.
(8)		If the appropriation is of an investment authorised by law or by the instrument (if any) creating the trust for the investment of money subject thereto no consent save of the trustee (if any) of a settled legacy share or interest shall be required on behalf of—
	(a)	an infant, where there is no parent or guardian; or
	(b)	a person who is mentally incapable, where there is neither a guardian of the person nor a manager of the person’s property under the Guardianship and Management of Property Act 1991; or
	(c)	a person who may come into existence after the time of appropriation, or who cannot be found or ascertained at that time, or as to whom it is uncertain at that time whether he or she is living or dead.
(8A)		Notwithstanding anything contained in paragraph (1) (b) or subsection (5) or (7) the consent of the annuitant shall not be necessary in any case in which the trustee, after having set apart a fund to answer the annuity, which fund at the time of appropriation would be sufficient, if it were invested in government securities of the Commonwealth of Australia at par, to provide an income exceeding the annuity by at least 20% thereof, has actually invested the fund in such securities.
(9)		Where an appropriation is made under this section in respect of a settled legacy share or interest, the property appropriated shall be subject to all trusts for sale and powers of leasing disposition management and varying investments which would have been applicable thereto or to the legacy share or interest in respect of which the appropriation is made, if no such appropriation had been made, provided that nothing in this section shall relieve the trustee of the settled legacy share or interest, where he or she is not the trustee making the appropriation, from the obligation to obtain payment or transfer of the property appropriated, if or when the same is so payable or transferable.
(10)		Where the exercise of any power of sale conferred on a legal representative by section 50 of the Administration and Probate Act 1929 is subject to any condition or to the leave of the court being obtained, the legal representative shall not be entitled to appropriate any part of the real estate under the powers conferred by this section, except with the leave of the court.
(11)		The trustee may make any conveyance or assent which may be necessary for giving effect to an appropriation under this section.
(12)		Any appropriation or disposition of property made in purported exercise of the powers conferred by this section shall, in favour of a purchaser in good faith, be deemed to have been made in accordance with the requirements of this section, and after all requisite consents (if any) have been given.
The protection afforded by this subsection shall extend to the Registrar-General for the Territory.
(13)		In this section a settled legacy share or interest means a legacy share or interest settled by the trust instrument (if any) or by any other instrument, and includes any legacy share or interest to which a person is not absolutely entitled in possession at the date of the appropriation.
(15)		This section shall not prejudice any other power of appropriation conferred by law or by the instrument (if any) creating the trust, and the powers conferred by this section shall be in addition to any such power.
(16)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(17)		This section applies to trusts created either before or after the commencement of this Act.
47 	Payment to the public trustee
(1)		Where any money is held in trust for an infant, or for a person who is unable to give a good discharge or cannot be found, the trustee may pay the money to the public trustee, and on such payment shall furnish the public trustee with a copy of the trust instrument, or where there is no such instrument, then with a statutory declaration setting forth the trusts on which the money is held and shall also furnish such information as to the disability or identity of the person for whom such money is held in trust as the public trustee may require.
(2)		The public trustee shall hold the money in trust for the infant or for such other person in accordance with the trusts affecting the money, and may exercise, in addition to the powers conferred on him or her by this section, such other powers as would be conferred on him or her by this Act if he or she had duly appointed the sole trustee of the money by a person having the power so to appoint him or her.
(3)		Where the money is held in trust for an infant or a person who is mentally incapable, the public trustee may—
	(a)	if the money does not exceed in amount $500—at his or her discretion; and
	(b)	if the money exceeds in amount $500 but does not exceed in amount $2,000—with the consent of the judge;
apply the whole or any part of the money for or towards the maintenance, education or benefit of the infant or mentally incapable person, or pay the whole or any part of the money to such person as the public trustee thinks fit to be so applied by that person.
(3A)		Where money has been paid to the public trustee under subsection (1) and the public trustee has, during a period of 6 years after the money was paid to him or her, had no knowledge of the existence or address of a person who is, or claims to be, entitled to the money or a share in the distribution of the money, the public trustee shall pay an amount equal to that money or that share, as the case may be, to the Minister, and furnish the Minister with particulars of the amount.
(3B)		A receipt given by the chief executive or by an officer authorised by him or her to give such receipts, shall be an effectual discharge to the public trustee in respect of moneys so paid.
(3C)		A person claiming to be entitled to money, or a share in the distribution of money, paid to the Minister under subsection (3A) may apply to the court for an order for payment to him or her of the amount due to him or her, and the court, if satisfied that the person is entitled to the money or to a share in the distribution of the money, shall make an order for payment accordingly.
(3D)		Upon the making of an order under subsection (3C) for payment of money to a person, or where the Minister is otherwise satisfied that a person is entitled to money, or a share in the distribution of money, paid to the Minister under this section, the Minister shall pay an amount equal to that money or to that share, as the case may be, to that person.
(3E)		The provisions of this section do not, except as expressly declared in this section—
	(a)	deprive a person of any other right or remedy to which he or she is entitled against a trustee or any other person; or
	(b)	impose on the public trustee an obligation to make or continue to make any enquiries or investigations as to the person entitled to moneys paid to him or her under subsection (1) after those moneys have been paid to the Minister in pursuance of subsection (3A).
(4)		This section applies to trusts created either before or after the commencement of this Act.
Receipts and compounding
48 	Receipts
(1)		The receipt in writing of trustees or of a sole trustee for any money, securities, or other personal property or effects payable, transferable, or deliverable to them or him or her under any trust or power shall be a sufficient discharge for the same, and shall effectually exonerate the person paying, transferring, or delivering the same from seeing to the application or being answerable for any loss or misapplication thereof.
(2)		This section applies to trusts created either before or after the commencement of this Act.
49 	Compounding
(1)		The trustees or the majority acting together, or a sole trustee where by the instrument (if any) creating the trust, or by statute, a sole trustee is authorised to execute the trusts and powers thereof, may, if and as they or he or she may think fit—
	(a)	accept any property before the time at which it is made transferable or payable; and
	(aa)	sever and apportion any blended trust funds or property; and
	(b)	accept any composition or any security, real or personal, for any debt or for any property claimed; and
	(c)	allow any time for payment for any debt; and
	(d)	compromise, compound, abandon, submit to arbitration, or otherwise settle any debt, account, claim or thing whatever relating to the estate or trust; and
	(e)	for any of those purposes enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things, as to them or him or her seem expedient.
(3)		The trustees trustee executor or administrator shall not be responsible for any loss occasioned by any act or thing so done by them or him or her in good faith.
(4)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument, and to the provisions therein contained.
(5)		This section applies to trusts created either before or after the commencement of this Act.
Safe custody, audit, and valuation
50 	Deposit for safe custody
(1)		A trustee may deposit any documents held by him or her relating to the trust, or the trust property, with any bank or with any incorporated company whose business it is to undertake the safe custody of documents.
(2)		Any sum payable in respect of the deposit may be paid out of the income of the trust property.
(3)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(4)		This section applies to trusts created either before or after the commencement of this Act.
51 	Audit
(1)		A trustee may, in his or her absolute discretion, from time to time  cause the accounts of the trust property to be examined or audited by a person who publicly carries on the business of an accountant, and shall for that purpose produce such vouchers and give such information to him or her as he or she shall require.
(2)		The costs of the examination or audit, including the fee of the person making the examination or audit, shall be paid out of the capital or income of the trust property, or partly in one way and partly in the other, as the trustee shall in his or her absolute discretion think fit.
(3)		In default of any direction, in any special case, by the trustee to the contrary, cost attributable to capital shall be borne by capital and those attributable to income by income.
(4)		Where the trustee is the public trustee or an incorporated company, nothing in this section shall authorise any costs or fee to be paid out of or borne by the capital or income of the trust property unless the court approves the costs or fee being so paid or borne or unless the costs are, or the fee is, incurred in respect of the examination or audit of the accounts of a business forming part of the trust property.
(5)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(6)		This section applies to trusts created either before or after the commencement of this Act.
52 	Valuation
(1)		A trustee may, for the purpose of giving effect to the trust or any of the provisions of the instrument (if any) creating the trust or of any statute, from time to time, by duly qualified agents, ascertain and fix the value of any trust property in such manner as he or she thinks proper.
(2)		Any valuation so made in good faith shall be binding upon all persons interested under the trust.
(3)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(4)		This section applies to trusts created either before or after the commencement of this Act.
Agents, banks, and other persons
53 	Employment of agents
(1)		A trustee may, instead of acting personally, employ and pay an agent, whether being a bank or a legal practitioner, stockbroker or any other person, to transact any business or do any act required to be transacted or done in the execution of the trust or in the administration of the estate.
(2)		The trustee shall be entitled to be allowed and paid all charges and expenses so incurred.
(3)		The trustee shall not be responsible for the default of any such agent if employed in good faith.
(4)		This section extends, in the case of a bank but not in any other case, to the receipt and payment of moneys.
(5)		Nothing in this section shall authorise a trustee to employ an agent in any case where a person acting with prudence would not employ the agent to transact the business or do the act, if the business or act was required to be transacted or done in such person’s own affairs.
(6)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(7)		This section applies to trusts created either before or after the commencement of this Act.
54 	Banks
(1)		Where there are more than 2 trustees or where there are 2 trustees 1 of whom is the public trustee or a trustee company, and the trustees by writing under their hands authorise a bank—
	(a)	to pay bills of exchange drawn upon the banking account of the trustees by 2 or more trustees named in that behalf in the authority or by the public trustee or a trustee company if 1 of the trustees and so named in that behalf in the authority; or
	(b)	to recognise as a valid endorsement upon any bill of exchange or promissory note payable to the order of the trustees the endorsement thereon by 2 or more trustees named in that behalf in the authority or by the public trustee or a trustee company if 1 of the trustees and so named in that behalf in the authority, or where the endorsement is for collection and credit of any account of the trustees with a bank, the endorsement thereon by any 1 or more of the trustees named in that behalf in the authority;
the bank acting in pursuance of the authority shall not be deemed privy to a breach of trust on the ground only of notice that the persons giving the authority were trustees, or that the instrument (if any) by which the trust was created did not contain any express power to give the authority:
(1A)		The duration of any such authority shall be limited to a period not exceeding 3 months on any 1 occasion, except where—
	(a)	the trustee or 1 of the trustees named in the authority is the public trustee or a trustee company; or
	(b)	the authority is to indorse for collection and credit of any account of the trustees with a bank.
(2)		This section shall not affect any question of the liability of any trustee for breach of trust in giving the authority.
(3)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(4)		This section applies to trusts created either before or after the commencement of this Act.
54A 	Banker may recognise certain signatures and endorsements
(1)		Where 2 or more persons in a fiduciary position (other than trustees under a will, settlement or like instrument) have deposited with a banker moneys which have been received by them as such fiduciaries, it shall be lawful for the banker, when so authorised by such persons—
	(a)	to pay cheques drawn on the banker by any 1 or more of them or any agent authorised by them;
	(b)	to recognise as a valid endorsement upon any bill of exchange or promissory note payable to the order of such persons an endorsement by any 1 or more of them or any agent authorised by them.
(2)		Where any person in a fiduciary position (other than a trustee under a will, settlement or like instrument) has deposited with a banker moneys which have been received by him or her as such fiduciary, it shall be lawful for the banker when so authorised by such person—
	(a)	to pay cheques drawn on the banker by an agent authorised by him or her;
	(b)	to recognise as a valid endorsement on any bill of exchange or promissory note payable to the order of such person an endorsement by any agent authorised by him or her.
(3)		Nothing in this section contained shall affect any liability of such persons or person to the persons towards whom they are or he or she is in a fiduciary position.
55 	Foreign property
(1)		Where any property subject to a trust or forming part of the estate of a testator or intestate is in any place outside New South Wales, the trustee may appoint any person to act as his or her agent or attorney for any of the following purposes:
	(a)	selling, converting, collecting, getting in, and executing and perfecting assurances of, or managing, or cultivating, or otherwise administering the property;
	(b)	executing or exercising any discretion trust or power vested in the trustee in relation to the property.
(2)		The agent or attorney may be so appointed with such ancillary powers, and with and subject to such provisions and restrictions as the trustee may think fit, including a power to appoint substitutes.
(3)		The trustee shall not by reason only of having made the appointment, be responsible for any loss arising thereby.
(4)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(5)		This section applies to trusts created either before or after the commencement of this Act.
56 	Undivided interests
(1)		Where an undivided share in the proceeds of sale of land directed to be sold, or in any other property, is subject to a trust or forms part of the estate of a testator or intestate, the trustee may, without prejudice to the trust for sale affecting the entirety of the land and the powers of the trustees for sale in reference thereto, execute or exercise any trust or power vested in him or her in relation to such share, in conjunction with the person entitled to or having power in that behalf over the other share or shares.
(2)		This section applies notwithstanding that the trustee may be entitled to or interested in any such other share, either in his or her own right or in a fiduciary capacity.
(3)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(4)		This section applies to trusts created either before or after the commencement of this Act.
Surviving trustee
57 	Two or more trustees
(1)		Where a power or trust is given to or vested in 2 or more trustees jointly, then, unless the contrary is expressed in the instrument (if any) creating the power or trust, the same may be exercised or performed by the survivor or survivors of them for the time being.
(2)		This section applies to powers and trusts created either before or after the commencement of this Act.
Protection of trustee
58 	Powers of attorney
(1)		A trustee acting or paying money in good faith under or in pursuance of any power of attorney shall not be liable for any such act or payment by reason of the fact that at the time of the payment or act the person who gave the power of attorney was dead or had done some act to avoid the power, if this fact was known to the trustee at the time of his or her so acting or paying.
(2)		Nothing in this section shall affect the right of any person entitled to the money against the person to whom the payment is made.
(3)		The person so entitled shall have the same remedy against the person to whom the payment is made as he or she would have had against the trustee.
(4)		This section applies to trusts created either before or after the commencement of this Act.
59 	Implied indemnity
(1)		A trustee shall be chargeable only for money and securities actually received by him or her, notwithstanding his or her signing any receipt for the sake of conformity.
(2)		A trustee shall be answerable and accountable only for his or her own acts, receipts, neglects, or defaults, and not for those of any other trustee, nor for any banker, broker, or other person with whom any trust moneys or securities may be deposited, nor for the insufficiency or deficiency of any securities, nor for any other loss, unless the same happens through his or her own wilful neglect or default.
(3)		Nothing in subsections (1) and (2) shall prejudice the provisions of the instrument (if any) creating the trust.
(4)		A trustee may reimburse himself or herself, or pay or discharge out of the trust property all expenses incurred in or about the execution of his or her trusts or powers.
(5)		This section applies to trusts created either before or after the commencement of this Act.
60 	Distribution after notice
(1)		Where a trustee intends to convey or distribute any property to or among the persons entitled thereto, he or she may give the requisite notice of his or her intention so to convey or distribute the property.
(2)		For the purposes of subsection (1), the requisite notice is a notice published in a newspaper printed and circulating in the Territory and such other notice or notices (if any) published within or outside the Territory as would, in a special case, be necessary, in order to comply with section 64 of the Administration and Probate Act 1929, in the case of an intended distribution of assets by an executor or administrator.
(3)		The notice shall require any person interested to send particulars of his or her claim in respect of the property or any part thereof to which the notice relates to the trustee within the time, not being less than 2 months, fixed in the notice or when more than 1 notice is given in the last of the notices.
(4)		At the expiration of the time fixed by the notice the trustee may convey or distribute the property or any part thereof to or among the persons entitled thereto, having regard only to the claims, formal or otherwise, of which he or she then had notice.
(5)		If the requisite notice has been given the trustee shall not, as respects the property conveyed or distributed, be liable to any person of whose claim the trustee has not had notice at the time of the conveyance or distribution.
(6)		Nothing in this section shall prejudice the right of any person to follow the property, or any property representing the same, into the hands of any person who may have received the same.
61 	Distribution where estate comprises leaseholds, and in certain other cases
(1)		Section 66 of the Administration and Probate Act 1929 applies to an assignment or a conveyance executed by a trustee and to a distribution of trust property in like manner as that section applies to an assignment by a legal representative and to a distribution of the estate of a testator or an intestate person.
(2)		Nothing in this section shall prejudice the right of the lessor or grantor and the persons deriving title under him or her to follow the trust 
property into the hands of the person amongst whom the same may have been distributed.
(3)		This section applies only to assignments or conveyances executed after the commencement of this Act.
61A 	Personal liability of legal representative or trustee
	The legal representative or trustee of the will of the deceased person who was registered as the holder of shares not fully paid up in any incorporated company may distribute the assets of the estate of such deceased person as soon as such legal representative or trustee has procured the registration of some other person as the holder of the shares without reserving any portion of the estate for the payment of any calls made after the date of such registration whether made by the company or its directors or by its liquidators in a winding-up, but nothing contained shall affect any right which the company or its liquidator may have to follow the assets of such deceased person into the hands of any persons amongst whom the same have been distributed or who have received the same.
62 	Notice
	A trustee acting for the purposes of more than 1 trust or estate shall not in the absence of fraud, be affected by notice of any instrument matter fact or thing in relation to any particular trust or estate if he or she has obtained notice thereof merely by reason of his or her acting or having acted for the purposes of another trust or estate.
63 	Advice
(1)		A trustee may apply to the judge for his or her opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.
(2)		If the trustee acts in accordance with the opinion advice or direction, he or she shall be deemed, so far as regards his or her own responsibility, to have discharged his or her duty as trustee in the subject matter of the application, provided that he or she has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.
(3)		Unless otherwise prescribed by rules of court, the application may be made by summons or appointment upon a written statement signed by the trustee or his or her legal practitioner.
(4)		Unless the judge otherwise directs, it shall not be necessary to serve notice of the application on any person, or to adduce evidence by affidavit or otherwise in support of the application.
(8)		Where the question is who are the beneficiaries or what are their rights as between themselves, the trustee before conveying or distributing any property in accordance with the opinion advice or direction shall, unless the judge otherwise directs, give notice to any person whose rights as beneficiary may be prejudiced by the conveyance or distribution.
(9)		The notice shall state shortly the opinion advice or direction, and the intention of the trustee to convey or distribute in accordance therewith.
(10)		Any person who claims that his or her rights as beneficiary will be prejudiced by the conveyance or distribution may within such time as may be prescribed by rules of court, or as may be fixed by the judge, apply to the court for such order or directions as the circumstances may require, and during such time and while the application is pending, the trustee shall abstain from making the conveyance or distribution.
(11)		Subject to the provisions of subsection (10) any person on whom notice of any application under this section is served or to whom notice is given in accordance with subsection (8) shall be bound by the opinion advice or direction of the judge, or by the order and directions of the court, as the case may be, as if the opinion advice or direction, or the order and directions, had been given or made upon the hearing of an originating summons to which such person was a party.
Division 3—Delegation
64 	Execution of trust
(1)		Where a trustee is absent from the Territory or is about to depart from the Territory, he or she may by registered deed delegate the execution of the trust.
(2)		A trustee may not so delegate, unless his or her co-trustees or co‑trustee, and such other person (if any) as is empowered to appoint trustees, consent by the same or other registered deed to the delegation, and the delegation is to the public trustee or to a trustee company or to a person residing in the Territory who is either a co-trustee or is capable of being appointed a trustee of the trust.
(3)		The delegation may be made in respect of the whole or any part of the trust.
(3A)		A delegation given under the authority of this section by a trustee who is the legal representative of a deceased person shall, unless the contrary is expressed in the deed of delegation, operate to delegate not only the execution of the duties incident to the office of legal representative of such deceased person (including the exercise and discharge of all the powers, authorities, duties and functions of the trustee as such legal representative) but also the execution of the trusts which devolve upon such trustee when the administration of the estate of such deceased person is completed.
(4)		The delegation shall not operate beyond 2 years from the date of the deed and shall be made on 1 occasion only, unless after the delegation the trustee has returned to the Territory and is again absent or about to depart from the Territory, provided that in the event of the delegate dying or the delegation being revoked, another delegation may be made for the balance of the period of 2 years.
(5)		The delegation shall not be made, whether to a co-trustee or to any other person, unless there will be remaining in the Territory to perform the trust, the public trustee or a trustee company or 2 persons whether as trustee or as delegate.
(6)		Trustees may delegate concurrently.
(7)		A trustee who delegates his or her trust shall remain answerable for all acts and omissions of the delegate within the scope of the delegation as if they were the acts and omissions of the trustee, and the delegate shall be subject to the jurisdiction and powers of any court so far as respects the execution of the trust in the same manner as if he or she were the trustee.
(8)		This section applies only if and as far as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained, provided that nothing in this subsection shall affect the jurisdiction or powers of any court.
(9)		This section applies to trusts created either before or after the commencement of this Act.
65 	Consent to exercise of trust or power
(1)		Where a person whose consent is required by any instrument to the exercise of a trust or power is absent from the Territory or is about to depart from the Territory, he or she may by registered deed delegate the right to consent to the public trustee, or a trustee company.
(2)		Persons may delegate concurrently.
(3)		The person who delegates and the delegate shall be severally liable for any improper exercise of the right to consent.
(4)		This section applies only if and as far as a contrary intention is not expressed in the instrument creating the power of trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(5)		This section applies to trusts or powers created either before or after the commencement of this Act.
66 	Persons dealing with delegate
(1)		No person dealing in good faith with the delegate under any deed of delegation authorised by this Part shall, by reason only that by the delegation or any evidence or document in connection therewith it appears that the delegate is acting in the execution of any trust, be affected for any purpose with notice of the trust.
(2)		This section applies to dealings before as well as after the commencement of this Act.
67 	Power of attorney
	A delegation under this Part shall be deemed to be a power of attorney within the meaning of the Powers of Attorney Act 1956, and that Act, except sections 6, 7 and 8, applies to such a delegation.
68 	Registration
(1)		An instrument by which a trust or the right to consent to the exercise of a trust or power is delegated shall be deemed not to be registered for the purposes of this Act unless it has been registered under the Registration of Deeds Act 1957.
(2)		This section extends to a delegation, whether under this Part or under the provisions of the instrument creating the trust or power or otherwise, and whether the trust or power does or does not relate to land subject to the provisions of the Land Titles Act 1925, or the Real Property Act 1900.
(3)		This section extends to a consent to a delegation.
(4)		This section applies to instruments executed either before or after the commencement of this Act.
Part 3—Powers of the Court
Division 1—New trustees and vesting orders
Appointment of new trustees
70 	New trustees
(1)		The court may make an order for the appointment of a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.
(2)		The appointment may be made whenever it is expedient to appoint a new trustee or new trustees, and it is inexpedient difficult or impracticable so to do without the assistance of the court.
(3)		In particular and without prejudice to the generality of any other provision of this section, the court may make an order for the appointment of a new trustee in substitution for a trustee who is convicted of felony, or is a bankrupt, or being a corporation is in liquidation or is dissolved.
(4)		In the case of any trust for a charity the court may make an order for the appointment of a new trustee on such evidence of the trust as the court deems sufficient.
(5)		This section shall be deemed to authorise the court to make an order for the reappointment of the continuing trustees alone as new trustees.
(6)		An order under this section, and any consequential vesting order or conveyance, shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.
(8)		Every trustee appointed under this section shall, as well before as after the trust property becomes vested in him or her, have the same powers authorities and discretions, and may in all respects act as if he or she had been originally appointed a trustee by the instrument (if any) creating the trust.
(9)		Nothing in this section shall give power to appoint an executor or administrator.
Vesting orders
71 	Vesting orders
(1)		The court may make an order in this Act called a vesting order, which shall have effect as provided in section 78.
(2)		A vesting order may be made in any of the following cases, namely:
	(a)	where the court appoints or has appointed a new trustee;
	(b)	where a new trustee has been appointed out of court under any statutory or express power;
	(c)	where a trustee retires or has retired;
	(d)	where a trustee is an infant;
	(e)	where a trustee is mentally incapable;
	(f)	where a trustee is out of the jurisdiction of the court;
	(g)	where a trustee cannot be found;
	(h)	where a trustee being a corporation is dissolved;
	(i)	where a trustee neglects or refuses to convey any property, or to receive the dividends or income of any property, or to sue for or recover any property according to the direction of the person absolutely entitled to the same for 28 days next after a request in writing has been made to him or her by the person so entitled;
	(j)	where it is uncertain who was the survivor of 2 or more trustees jointly entitled to or possessed of any property;
	(k)	where, as to the last trustee known to have been entitled to or possessed of any property, it is uncertain whether he or she is living or dead;
	(l)	where there is no legal representative of a trustee who was entitled to or possessed of any property or where it is uncertain who is the legal representative of a trustee who was entitled to or possessed of any property;
	(m)	where any person neglects or refuses to convey any property, or to receive the dividends or income of any property, or to sue for or recover any property in accordance with the terms of an order of the court;
	(n)	where the court might have made a vesting order if this Act had not been passed;
	(o)	where property is vested in a trustee, whether by way of mortgage or otherwise, either solely or jointly with any other person, and it appears to the court to be expedient to make a vesting order.
(3)		The provisions of paragraphs (2) (d), (e), (f), (g), (h) and (i) extend to a trustee entitled to or possessed of any property either solely or jointly with any other person.
(4)		Where the order is consequential on the appointment of a new trustee, the property shall be vested in the persons who, on the appointment are the trustees.
(5)		Where the vesting order is consequential on the retirement of 1 or more of a number of trustees, the property may be vested in the continuing trustees alone.
(6)		Subject to the provisions of subsection (4), the vesting order may vest the property in any such person in any such manner and for any such estate or interest as the court may direct, or may release or dispose of any contingent right to such person as the court may direct.
(7)		The fact that the order is founded or purports to be founded on an allegation of the existence of any of the matters mentioned or referred to in subsection (2), shall be conclusive evidence of the matter so alleged in any court upon any question as to the validity of the order.
(8)		This section shall not prevent the court from directing a reconveyance or the payment of costs occasioned by any such order if improperly obtained, or from making a further vesting order.
(9)		Where by reason of the dissolution of a corporation either before or after the commencement of this Act a legal estate in any property has determined, the court may by order create a corresponding estate and vest the same in the person who would have been entitled to the estate which determined, had it remained a subsisting estate.
72 	Contingent rights of unborn persons
	Where any property is subject to a contingent right in an unborn person or class of unborn persons, who, on coming into existence, would in respect thereof become entitled to or possessed of the property on any trust, the court may make a vesting order releasing the property from the contingent right, or vesting in any person the estate or interest to or of which the unborn person or class of unborn persons would, on coming into existence, be entitled or possessed in the property.
73 	Infant beneficiary
	Where an infant is beneficially entitled to any property the court may, with a view to the application of the capital or income thereof for the maintenance, education, or benefit of the infant, make an order upon such terms as the court may think fit appointing a person to convey the property, or in the case of stock, or a chose in action, vesting in any person the right to transfer or call for a transfer of the stock, or to receive the dividends or income thereof, or to sue for and recover the chose in action.
74 	Mortgagee under disability
	Where any person entitled to or possessed of property by way of mortgage is an infant or is mentally incapable, the court may make a vesting order vesting or releasing or disposing of the property, with the right to transfer or call for a transfer of property, or to receive the dividends or income thereof, or to sue for or recover property or any interest in respect thereof, in like manner as in the case of a trustee being an infant or a mentally incapable person.
75 	Deceased mortgagee
(1)		Subject to this section, where a mortgagee of land has died—
	(a)	if the land is subject to the provisions of the Land Titles Act 1925, or the Real Property Act 1900—the court may make an order discharging the mortgage; and
	(b)	in any other case—the court may make an order vesting the land in such person or persons, in such manner and for such estate as the court directs.
(2)		The order may only be made if the mortgagee did not enter into possession, and the money due in respect of the mortgage has been paid to a person entitled to receive the same, or that lastmentioned person consents to any order for the reconveyance of the land.
(3)		The order may be made in any of the following cases, namely:
	(a)	where the legal representative of the mortgagee is out of the jurisdiction of the court or cannot be found;
	(b)	where the legal representative of the mortgagee, on demand made by or on behalf of a person entitled to require a conveyance of the land has stated in writing that he or she will not convey the same or does not convey the same for the space of 28 days next after a proper deed for conveying the land has been tendered to him or her by or on behalf of the person so entitled;
	(c)	where it is uncertain as to the legal representative of the mortgagee whether he or she is living or dead;
	(d)	where there is no legal representative of a mortgagee who has died intestate as to the land, or where the mortgagee has died and it is uncertain who is his or her legal representative;
	(e)	where the court might have made a vesting order if this Act had not been passed.
(4)		The fact that the order is founded or purports to be founded on an allegation of the existence of any of the matters mentioned or referred to in subsection (3) shall be conclusive evidence of the matter in any court upon any question as to the validity of the order.
(5)		This section shall not prevent the court from directing a reconveyance or the payment of costs occasioned by any such order if improperly obtained, or from making a further vesting order.
76 	Sale or mortgage of land
(1)		Where a decree is made by the court directing the sale or mortgage of any land, the court may, if it thinks expedient, make an order vesting the land or any part thereof for such estate as the court thinks fit in the purchaser or mortgagee or in any other person.
(2)		For the purposes of this section every person who is entitled to or possessed of the land, or entitled to a contingent right therein, and is a party to the proceeding in which the decree is made or is otherwise bound by the decree, shall be deemed to be so entitled or possessed, as the case may be, as a trustee within the meaning of this Act.
77 	Specific performance and other matters
(1)		The court may make a vesting order where a decree is made by the court for the specific performance of a contract concerning any land, or for the partition or sale in lieu of partition of any land, or for the exchange of any land, or for the conveyance of any land, either in cases arising out of the doctrine of election or otherwise.
(2)		For the purposes of this section the court may declare—
	(a)	that any of the parties to the proceeding are trustees of the land or any part thereof within the meaning of this Act;
	(b)	that the interests of unborn persons who might claim under any party to the proceeding, or under the will or voluntary settlement of any person deceased, who was during his or her lifetime a party to the contract or transactions concerning which the decree is made, are the interests of person who on coming into existence would be trustees within the meaning of this Act.
(3)		The vesting order may be made with respect to the rights of those persons born and unborn as if they had been trustees.
78 	Effect of vesting order
(1)		In the case of a vesting order consequential on the appointment of a new trustee, or the retirement of a trustee, the vesting order shall have the same effect as if the persons who before the appointment or retirement were the trustees (if any) had duly executed all proper conveyances of the property for such estate or interest as the court directs or if there is no such person, or no such person of full capacity, then as if such person had existed and been of full capacity, and had duly executed all proper conveyances of the property for such estate or interest as the court directs.
(2)		In every other case the vesting orders shall have the same effect as if the trustee or other person or description or class of persons to whose rights, or supposed rights, the provisions of this Part respectively relate, had been an ascertained and existing person of full capacity, and had executed a conveyance or release to the effect intended by the order.
(3)		Land does not vest by virtue of a vesting order made under this Part—
	(a)	where the land is subject to the provisions of the Land Titles Act 1925, or the Real Property Act 1900—until the appropriate entries of the vesting are made in the register kept under those Acts;
	(b)	where the land is subject to the provisions of the Crown Lands Acts—until the order is registered under the Registration of Deeds Act 1897, and the appropriate entries of the vesting are also made in the appropriate register kept under the Acts to which the land is subject; and
	(c)	in any other case—until the order is registered under the Registration of Deeds Act 1897.
(5)		In the following cases the vesting order shall vest in the person named in the order the right to transfer or call for a transfer of a property or security, that is to say, in the case of:
	(a)	any property that does not come within subsection (3), but a transfer of which is required to be registered by or under a law in force in the Territory or otherwise;
	(b)	any security that is only transferable in books kept by a corporation company or other body, or in manner directed by or under a law in force in the Territory or otherwise.
(6)		In the case of any security or chose in action the vesting order shall vest in the person named in the order the right to receive the dividends or income thereof, and to sue for or recover the chose in action.
(7)		The person in whom the right to transfer or call for the transfer of any property or security is so vested may transfer the property or security to himself or herself or any other person according to the order, and all corporations companies associations and persons shall obey the order.
(8)		After notice in writing of the vesting order it shall not be lawful for any company association or person to transfer any property or security to which the order relates, or to pay any dividends thereon except in accordance with the order.
79 	Appointment of person to convey
	In all cases where a vesting order can be made the court may, if it is more convenient, appoint a person to convey the property or release any contingent right, and a conveyance or release by that person in conformity with the order shall have the same effect as an order under the appropriate provision.
80 	Trustees of charities
	The powers conferred by this Act as to vesting orders may be exercised for vesting any property in any trustee of a charity or society over which the court would have jurisdiction in a proceeding duly instituted, whether the appointment of the trustee was made by instrument under a power or by the court under its general or statutory jurisdiction.
Division 2—Dealings and improvements
81 	Advantageous dealings
(1)		Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release, or disposition, or any purchase, investment, acquisition, expenditure, or transaction, is in the opinion of the court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the instrument (if any) creating the trust, or by law, the court—
	(a)	may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions, including adjustment of the respective rights of the beneficiaries, as the court may think fit; and
	(b)	may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.
(2)		The provisions of subsection (1) shall be deemed to empower the court, where it is satisfied that an alteration whether by extension or otherwise of the trusts or powers conferred on the trustees by the trust instrument (if any) creating the trust, or by law is expedient, to authorise the trustees to do or abstain from doing any act or thing which if done or omitted by them without the authorisation of the court or the consent of the beneficiaries would be a breach of trust, and in particular the court may authorise the trustees—
	(a)	to sell trust property, notwithstanding that the terms or consideration for the sale may not be within any statutory powers of the trustees, or within the terms of the instrument (if any) creating the trust, or may be forbidden by that instrument; or
	(b)	to postpone the sale of trust property; or
	(c)	to carry on any business forming part of the trust property during any period for which a sale may be postponed; or
	(d)	to employ capital money subject to the trust in any business which the trustees are authorised by the instrument (if any) creating the trust or by law to carry on.
(3)		The court may from time to time rescind or vary any order made under this section, or may make any new or further order.
(4)		The powers of the court under this section shall be in addition to the powers of the court under its general administrative jurisdiction, under this Act or under any other Act or ordinance in force in the Territory.
(5)		This section applies to trusts created either before or after the commencement of this Act.
82 	Improvements and repairs
(1)		Where any leasehold or freehold land is vested in a trustee for any infant, or in trust for any persons in succession, the court may authorise the trustee to pay or apply capital money subject to the trust for any 1 or more of the following purposes, as to the court seems fit, that is to say:
	(a)	to effect repairs to any existing buildings, dams, fences or other erections upon the land;
	(b)	to effect improvements of or upon the land, or to reconstruct enlarge or improve any existing buildings, dams, fences or other erections thereon;
	(c)	to erect any new buildings, dams, fences or other erections upon the land;
	(d)	to erect or join in erecting any give and take fence, that is to say, a fence part of which is on the land and part on adjoining land;
	(e)	to restock the land with sheep, cattle, or horses;
	(f)	to replace machinery or implements required for the land.
(2)		The trustee may be so authorised where the court, having due regard to the interest of all persons beneficially interested in the land, thinks that the proposed expenditure is expedient, although it may not be necessary for the purpose of the salvage of the property.
(3)		The amount of capital money that may be so expended shall be stated in the order authorising the proposed expenditure.
(4)		The court may authorise the trustee, as to the court seems fit—
	(a)	to raise the amount by mortgage of the land, or by sale of a part thereof;
	(b)	to raise the amount by mortgage or sale of any other real or personal property held upon the same trusts;
	(c)	to pay the amount out of any moneys under the control of the trustee and held by him or her upon the same trusts;
	(d)	to provide the amount partly in one and partly in another of those modes;
	(e)	to provide a sinking fund out of income.
(5)		Where the amount is authorised to be raised by mortgage the court may give directions to the trustee how the principal and interest are to be paid.
(6)		The court may require such provision for a sinking fund as the court thinks proper.
(7)		The court shall give such directions as appear necessary and proper, so as to throw upon the respective interests of the persons beneficially interested their proper proportion of the moneys to be expended.
(8)		No purchaser or mortgagee paying or advancing money upon any sale or mortgage authorised by the court under this section shall be required to see to the application of the purchase money or mortgage money, and the protection given by this subsection shall extend to the Registrar-General for the Territory.
(9)		This section applies to trusts created either before or after the commencement of this Act.
82A 	Improvements and repairs without authority of the court
(1)		Where any leasehold or freehold land is vested in a trustee for any infant or in trust for any person in succession and in the opinion of the trustee it is expedient in the interest of all persons beneficially interested in the land to expend capital moneys subject to the trust for any 1 or more of the purposes specified in paragraphs 82 (1) (a) to (f) (inclusive) the trustee may, without the authority of the court, expend on all or any of such purposes capital moneys subject to the trust not exceeding in all $2,000 or 1/3 of the value of the land whichever is the less.
(2)		Where in the opinion of the trustee it is expedient to exercise the power conferred by subsection (1) he or she may without the authority of the court exercise any of the powers specified in subsection 82 (4), and he or she shall throw upon the respective interests of the persons beneficially interested a proper proportion of the moneys so expended.
(3)		A purchaser paying money upon a sale, or a mortgagee advancing money upon a mortgage, authorised by this section is not required to see to the application of the purchase money or mortgage money and the protection given by this subsection extends to the Registrar-General for the Territory.
(4)		This section applies to trusts created either before or after the commencement of this Act.
84 	Sale of infant’s property
(1)		Where any property is held in trust for an infant, the judge may authorise the trustee to sell the whole or any part of the property.
(2)		The authority shall be given on such terms and subject to such provisions and conditions as the judge may think fit.
(3)		The judge may confer upon the trustee such powers as appear necessary or proper for the purpose, including power to concur with any other person.
(4)		This section applies whether the trust is for the infant solely or together with any other person, and whether the interest of the infant is or is not in possession.
(5)		This section applies to trusts created either before or after the commencement of this Act.
Division 3—Relief and indemnity
85 	Excusable breaches of trust
(1)		Where a trustee is or may be personally liable for any breach of trust, the court may relieve the trustee either wholly or partly from personal liability for the breach.
(2)		The relief may not be given unless it appears to the court that the trustee has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the direction of the court in the matter in which he or she committed the breach.
(3)		In the case of a legal representative the powers of the court may be exercised by the Supreme Court in its probate as well as in its equity jurisdiction.
(4)		This section applies whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act.
86 	Indemnity for breach of trust
(1)		Where a trustee commits a breach of trust at the instigation or request or with the written consent of a beneficiary, the court may, if it thinks fit, make such order as to the court seems just for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or person claiming through him or her.
(2)		The provisions of subsection (1) shall be deemed to empower the court to impound all or any part of the interest of any beneficiary who receives any pecuniary benefit from the breach of trust.
(3)		This section applies notwithstanding that the beneficiary may be a married woman entitled for her separate use and restrained from anticipation.
(4)		This section applies to breaches of trust committed as well before as after the commencement of this Act, but shall not prejudice any question in any suit or other proceeding instituted before and pending at the commencement of this Act.
Division 4—Miscellaneous powers
87 	Division of chattels
(1)		Where any chattels are vested in a trustee for persons in undivided shares, any person interested in a moiety or upwards may apply to the court for an order for division of the chattels or any of them, according to a valuation or otherwise.
(2)		The court may make such order and give any consequential directions as it thinks fit.
88 	Decree in absence of a trustee
	Where in any proceeding the court is satisfied that diligent search has been made for any person who, in the character of trustee, is made a defendant thereto to serve him or her with a process of the court and that he or she cannot be found, the court may hear and determine the proceeding and make a decree therein against that person in his or her character of a trustee as if he or she had been duly served or had entered an appearance in the proceeding, and had also appeared by his or her legal practitioner at the hearing, but without prejudice to any interest he or she may have in the matters in question in the proceeding  in any other character.
89 	Court considerations in action for breach of trust
	In a proceeding against a trustee for a breach of trust in relation to a duty under Division 2 of Part 2 relating to the trustee’s power of investment, the court may, when considering the question of the trustee’s liability, take into account the following:
	(a)	the nature and purpose of the trust;
	(b)	whether the trustee had regard to the matters mentioned in section 14C so far as is appropriate to the circumstances of the trust;
	(c)	whether the trust investments were made in accordance with an investment strategy formulated in accordance with the duty of a trustee under Division 2 of Part 2;
	(d)	the extent the trustee acted on the independent and impartial advice of a person competent (or apparently competent) to give the advice.
89A 	Power of court to set off investment gains and losses
(1)		In considering an action for breach of trust arising out of or in relation to an investment by a trustee where a loss has been or is expected to be made by the trust, the court may set off all or part of the loss resulting from the investment against all or part of the gain resulting from any other investment whether in breach of trust or not.
(2)		The power of set off under subsection (1) is in addition to any other power or entitlement to set off all or part of any loss against any property.
90 	Postponement of order
	Where any application is made under this Part, the court may postpone making any order upon the application until the right of the applicant has been declared in a proceeding duly instituted for that purpose.
Division 5—Applications and orders
91 	Summons
(1)		Every application to the court under this Act shall be by summons, except where it is otherwise provided in this Act or by rule of court.
(2)		On any application notice shall be served on such persons (if any) as the court thinks fit.
(3)		If on any application to the court any person who ought to be served with notice cannot be found within the Territory, or if it is uncertain whether any such person be living or dead, or if notice cannot be given to any such person without expense disproportionate to the value of his or her interest, the court may dispense with notice to any such person, and such person shall thereupon be deemed to have submitted his or her rights and interests to be dealt with by the court.
(5)		Where in any proceeding the facts proved would entitle the court to make any order on an application under this Act, the court may make the order without requiring any separate proceeding to be initiated, and any order so made shall be deemed to be made on an application under this Act.
92 	Persons entitled to apply
(1)		An order under this Act for the appointment of a new trustee or concerning any property subject to a trust may be made on the application of any person interested in the property, whether under disability or not, or of any person duly appointed trustee thereof.
(2)		An order under this Act concerning any property subject to a mortgage may be made on the application of any person interested in the equity of redemption, whether under disability or not, or of any person interested in the money secured by the mortgage.
93 	Costs
(1)		The court shall have full power and discretion to make such order as it thinks fit respecting the costs charges and expenses of all or any of the parties to any application under this Act.
(2)		The court may order the costs charges and expenses of an incident to any application or any order under this Act to be paid or to be raised by sale or mortgage out of the property in respect of which the same is made or out of the income, or to be borne and paid in such manner and by such persons as to the court may seem just.
(3)		In any proceeding with respect to the management or administration of any property subject to a trust or forming part of the estate of a testator or intestate, or with respect to the interpretation of the trust instrument, the court may, if it thinks fit, order any costs to be paid out of such part of the property as in the opinion of the court is the real subject matter of the proceeding.
(4)	This section shall extend to any direction opinion or advice, any payment into or out of court, and any conveyance or transfer in pursuance of an order.
Division 6—Charitable trusts
Note  The provisions of this Division were relocated from Part 18 of Schedule 2 to the Imperial Acts (Substituted Provisions) Act 1986.  (For the effect of a relocation, see Interpretation Act 1967, s 49.)  The 1986 Act substituted provisions for certain UK Acts that applied (or may have applied) in the Territory and repealed those Acts.  The provisions of Part 18 of Schedule 2 were substituted for 52 Geo. 3 c 101 (1812). Subsection 4 (1) of the 1986 Act provided, in effect, that the rules of law about the interpretation of consolidating Acts apply to the interpretation of the provisions of a law set out in Schedule 2.  These rules of law continue to apply to this Division (see Interpretation Act 1967, s 49 (3)).
94 	Reference to order made under s 94A
	In section 94D, the reference to an order made under section 94A is, if the order is appealed against, a reference to the order as affirmed or varied, or the order substituted, on appeal.
94A	Applications to court
	Application may be made to the Supreme Court by any person for such relief, in relation to the administration of a trust for charitable purposes, as the circumstances require.
94B	Orders of court
	Where application is made to the Supreme Court under section 94A, the Court may make such order, including an order with respect to the costs of the proceedings, as it deems just in all the circumstances of the case.
94C	Notice to Minister
(1) 	Notice of an application under section 94A shall be served on the Minister.
(2) 	The Minister may be represented in the hearing of an application.
94D	Jurisdiction of Supreme Court
	Jurisdiction is vested in the Supreme Court to hear and determine applications under section 94A.
94E	Action under order of court lawful
	Action taken by trustees of a trust for charitable purposes in accordance with an order made by the Supreme Court under section 94B shall, for all purposes, be deemed to have been duly and lawfully taken.
Part 4—Payment into Court
95 	Trustees
(1)		Where trustees, or the majority of trustees, have in their hands or under their control money or securities belonging to a trust, they may pay the same into court.
(2)		Where any money or securities are vested in any persons as trustees, and the majority are desirous of paying the same into court, but the concurrence of the other or others cannot be obtained, the court may order the payment into court to be made by the majority without the concurrence of the other or others.
(3)		Where any such money or securities are deposited with any banker broker or other depositary, the court may order transfer payment or delivery of the money or securities to the majority of the trustees for the purpose of payment into court.
(4)		Every transfer payment and delivery made in pursuance of any such order shall be valid and take effect as if the same had been made on the authority or by the act of all the persons entitled to the money or securities so transferred paid or delivered.
96 	Person liable to infant or person of unsound mind
	Where an infant or person of unsound mind is entitled to any money payable in discharge of land stock or chose in action conveyed under this Act, the person by whom the money is payable may pay the money into court.
98 	Money or securities
(1)		The payment of money or securities into court shall be subject to rules of court.
(2)		The receipt or certificate of the registrar of the court or other proper officer shall be a sufficient discharge to any trustee person or company for money or securities paid into court.
(3)		Money or securities paid into court shall, subject to rules of court, be dealt with according to the orders of the court.
(4)		The court may make such order as it thinks fit as to the investment payment or distribution of money or securities paid into court, or the dividends or income thereof.
99 	Trustee
	In this Part—
trustee includes every implied or constructive trustee without any exception.
Part 5—Miscellaneous Provisions
100 	Escheat
(1)		Property vested in any person upon any trust or by way of mortgage shall not escheat or be forfeited to the Crown by reason of the attainder or conviction for any offence of the trustee or mortgagee.
(2)		Property so vested shall remain in the trustee or mortgagee or survive to his or her co-trustee, or vest in his or her legal representative as if the attainder or conviction had not taken place.
(3)		This section shall not prevent the escheat or forfeiture of any property vested in any trustee or mortgagee so far as relates to any beneficial interest therein of the trustee or mortgagee, but the property, so far as relates to any such beneficial interest, shall be recoverable in the same manner as if this Act had not been passed.
102 	Compulsion to account
(1)		Where a guardian, committee, receiver or other trustee appointed by the court has been or is, by order in a particular cause or matter or by rules of court, directed to account from time to time or to file a report or account in the office of the registrar of the court, the court may, in order to enforce compliance with the order or the rules of court, cause the guardian, committee, receiver or other trustee to be summoned before the court to show cause why he or she should not be ordered to account or to file the report or account.
(2)		If the guardian, committee, receiver or other trustee does not, within the prescribed time or within such further time as is allowed by the court, account or file the report or account in the prescribed manner he or she is liable to attachment in accordance with the practice of the court.
(3)		Under this section, the court may cause a guardian, committee, receiver or other trustee to be summoned before the court on its own motion or on the application of—
	(a)	the parties to the cause or matter or any of those parties; or
	(b)	the registrar of the court on behalf of those parties or any of those parties.
103 	Indemnity
(1)		This Act and every order purporting to be made under this Act shall be a complete indemnity to all companies associations and persons for any acts done pursuant thereto.
(2)	It shall not be necessary for any company association or person to inquire concerning the propriety of the order or whether the court had jurisdiction to make the same.
103A 	Preamble to Charitable Uses Act 1601
	For the law of the Territory, the text set out in the Schedule is taken to be the text of the preamble to the United Kingdom Act 43 Eliz. c 4 (also known as the Charitable Uses Act 1601).
part 6—transitional provisions
104 	Investments
(1)		A trustee, or a person permitted or required by a provision (however expressed) of any other Act or any instrument to invest money in investments authorised by this Act, may invest, or keep an investment, in any security authorised by section 14 as in force immediately before the commencement of this section for a period of up to 2 years after that commencement.
(2)		Subsection (1) applies to a trustee if the trustee is not expressly forbidden from investing in such a security by the instrument  (if any) creating the trust or any law of the Territory.
(3)		This section expires 2 years after it commences.
105 	Application of certain sections to existing and new trusts
(1)		To remove any doubt, it is declared that the following sections apply to a trust created before or after the commencement of this section:
•	section 14 (Powers of investment)
•	section 14A (Duties of trustee)
•	section 14B (Law and equity preserved)
•	section 14C (Exercise of power of investment)
•	section 14D (Powers of trustee in relation to securities)
•	section 14E (Power to buy house as residence for beneficiary)
•	section 14F (Investment in securities under RITS system).
(2)		This section expires 2 years after it commences.
106 	Securities
(1)		To remove any doubt, it is declared that section 14D applies in relation to securities acquired before or after the commencement of this section, subject to the instrument  (if any) creating the trust.
(2)	This section expires 2 years after it commences.

	SCHEDULE	(see s 103A)
preamble to charitable uses act 1601
Whereas lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money and stocks money have been heretofore given, limited, appointed and assigned, as well by the Queen’s most excellent Majesty and her most noble progenitors, as by sundry other well disposed persons, some for relief of aged, impotent and poor people, some for maintenance of sick and maimed soldiers and mariners, schools of learning, free schools and scholars in universities, some for repair of bridges, ports, havens, causeways, churches, sea-banks and highways, some for education and proferment of orphans, some for or towards relief, stock or maintenance for houses of correction, some for marriages of poor maids, some for support, aid and help of young tradesmen, handicraftsmen, and decayed persons, and others for relief or redemption of prisoners or captives and for aid or ease of any poor inhabitants concerning payment of fifteens, setting out of soldiers and other taxes; which lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money and stocks of money nevertheless have not been employed according to the charitable intent of the givers and founders thereof by reason of the frauds, breaches of trusts and negligence in those that should pay, deliver and employ the same.

ENDNOTES
1	About this republication
This is a republication of the Trustee Act 1925 as in force on 10 November 1999.  It includes all amendments made to the Act up to Act 1999 No 66.
Amending laws are annotated in the table of legislation and table of amendments.
The Parliamentary Counsel’s Office currently prepares 2 kinds of republications of ACT laws:  authorised printed republications to which the Legislation (Republication) Act 1996 applies and unauthorised electronic republications.  The status of this republication appears on the cover.
Section 13 of the Legislation (Republication) Act 1996 authorises the Parliamentary Counsel, in preparing a law for republication, to make textual amendments of a formal nature which the Parliamentary Counsel considers desirable in accordance with current legislative drafting practice.  The amendments do not effect a substantive change in the law.
In preparing this republication, amendments have not been made under section 13.
Not all amendments made under section 13 are annotated in the table of amendments.  Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
2	About the republished Act
The Trustee Act 1925 (NSW) (the republished Act), as in force in NSW immediately before the commencement of the Trustee Act 1957 (the application Act), applies in the Territory as a law of the Territory under the application Act.
The application Act modifies the republished Act in its application in the Territory.  The modifications are incorporated in this republication of the republished Act and are annotated as amendments in the table of amendments.
Sections 9 and 10 of the application Act also contain provisions about the interpretation and operation of the republished Act.  The effect of the sections have not been incorporated in this republication of the republished Act.
3	Abbreviation key
Key to abbreviations in tables

am = amended
amdt = amendment
ch = chapter
cl = clause
def = definition
div = division
exp = expires/expired
Gaz = Gazette
hdg = heading
ins = inserted/added
LR = Legislation (Republication) Act 1996
mod = modified
No = number
notfd = notified
o = order
om = omitted/repealed
orig = original
p = page
par = paragraph
pres = present
prev = previous
(prev...) = previously
prov = provision
pt = part
r = rule/subrule
reg = regulation/subregulation
renum = renumbered
reloc = relocated
R[X] = Republication No
s = section/subsection
sch = schedule
sdiv = subdivision
sub = substituted
SL  = Subordinate Law
sp = spent
*  = SL unless otherwise stated
† = Act or Ordinance unless otherwise stated

4	Table of legislation
Part 1—New South Wales legislation
Act†	Year and number†	Assent	Commencement	Transitional provisions	

Trustee Act 1925-1942 (New South Wales)
	1925 No 14	8 Dec 1925	1 Mar 1926		
Part 2—Legislation before self-government
Ordinance†	Year and number†	Gazette
notification	Commencement	Transitional provisions	

Trustee Ordinance 1957	1957 No 14	21 Nov 1957	1 Dec 1957	—
	
Part 3—Legislation after self-government
Act†	Year and number†	Gazette
notification	Commencement	Transitional provisions	

Financial Institutions (Consequential Amendments) Act 1992	1992 No 30	1 July 1992	1 July 1992	—	
Trustee (Amendment) Act 1992	1992 No 50	1 Sept 1992	1 Sept 1992	—	
Registrar-General (Consequential Provisions) Act 1993	1993 No 64	6 Sept 1993	ss 1 and 2:  6 Sept 1993
remainder:  1 Oct 1993 (see 
s 2 (2) and Gaz 1993 No S207)	pt III
(ss 6-13)	
Public Sector Management (Consequential and Transitional Provisions) Act 1994	1994 No 38	30 June 1994	ss 1 and 2:  30 June 1994
remainder:  1 July 1994 (see Gaz1994 No S142 p 2)	ss 3, 5-12, 15 and 19	
Mental Health (Consequential Provisions) Act 1994	1994 No 45	7 Sept 1994	ss 1 and 2:  7 Sept 1994
remainder:  6 Feb 1995 (see
s 2 (2)  and Gaz 1995 No S33, 
p 2) 	—	
Trustee (Amendment) Act 1995	1995 No 26	5 Sept 1995	5 Sept 1995	—	
Statute Law Revision Act 1995	1995 No 46	18 Dec 1995	18 Dec 1995	—	
Land Titles (Consequential Amendments) Act 1995	1995 No 54	20 Dec 1995	20 June 1996 (see s 2)	—	
Legal Practitioners (Consequential Amendments) Act 1997	1997 No 96	1 Dec 1997	ss 1 and 2:  1 Dec 1997
remainder:  1 June 1998 (see s 2 (2))	—	
Trustee (Amendment) Act 1999
	1999 No 28	21  May 1999	21  May 1999	—	
Law Reform (Miscellaneous Provisions) Act 1999
	1999 No 66	10 Nov 1999	10 Nov 1999	—	

5	Table of amendments

Provision	How affected†

s 1	am 1957 No 14
s 2	om 1999 No 28 s 4
ss  3, 4	om 1957 No 14
s 5	am 1957 No 14 (as am by 1985 No 9); 1992 No 50; 1993  No 64; 1994 No 45
s 5A	ins 1999 No 28 s 5
s 6	am 1957 No 14
s 9	am 1957 No 14; 1993 No 64; 1995 No 54
s 10	am 1957 No 14  (as am by 1985 No 9)
ss 11, 12	am 1957 No 14; 1993 No 64; 1995 No 54
s 13	am 1957 No 14; 1993 No 64
s 14	am 1957 No 14 (as am by 1968 No 18; 1975 No 28; 1978 No 46; 1982 Nos 27 and 38; 1988 Nos 17 and 78; 1989 No 38; 1990 No 1); 1992 Nos 30 and 50; 1995 No 26
	om 1999 No 28  s 6
ss 14A-14F	ins 1999 No 28  s 6 
s 15	am 1957 No 14; 1992 No 50
	om 1999 No 28  s 6
s 16	am 1957 No 14
	om 1999 No 28  s 6
s 18	am 1957 No 14 (as am by 1989 No 38)
s 19	am 1999 No 28  s 7 
s 20	am 1957 No 14; 1993 No 64
s 22	am 1995 No 46
s 24	am 1957 No 14; 1999 No 28 s 8
s 26	am 1957 No 14
s 27A	om 1957 No14  (as am by 1988 No 65)
s 27B	am 1957 No 14
s 28	am 1957 No 14
s 29	om 1957 No 14
s 32A	am 1957 No 14
s 33	am 1957 No 14; 1993 No 64; 1995 No 54
ss 34, 35	am 1957 No 14; 1993 No 64
s 36	am 1957 No 14; 1993 No 64; 1995 No 54
ss 39A, 39B	am 1957 No 14
s 43	am 1957 No 14
s 44	am 1957 No 14  (as am by 1989 No 38); 1992 No 50
s 46	am 1957 No 14; 1993 No 64; 1994 No 45
s 47	am 1957 No 14  (as am by 1989 No 38); 1994 Nos 38 and 45
s 51	am 1957 No 14
s 53	am 1997 No 96
s 60	am 1957 No 14  (as am by 1989 No 38); 1999 No 28  s 9
s 61	am 1957 No 14
s 63	am 1957 No 14; 1997 No 96
ss 64, 65	am 1957 No 14  (as am by 1989 No 38)
s 67	sub 1957 No 14
s 68	am 1957 No 14; 1993 No 64; 1995 No. 54
s 69	om 1957  No. 14 (as am by 1985  No 66)
s 70	am 1957 No 14
s 71	am 1994 No 45
s 74	am 1994 No 45
s 75	am 1957 No 14 ; 1993 No 64; 1995 No. 54
s 76	am 1999 No 28  s 10
s 77	am 1999 No 28 s 11
s 78	am 1957 No 14; 1993 No 64; 1995 No 54
s 80	am1999 No 28  s 12
s 81	am 1957 No 14
s  82	am 1957 No 14; 1993 No 64
s 82A	am 1957 No 14 (as am by1989 No 38); 1993 No 64
s 83	am 1957 No 14
	om 1999 No 28  s 13
s84	am 1957 No 14
s 88	am 1997 No 96; 1999 No 28 s 14
s 89	am 1957 No 14
	rep 1994 No 45
	ins 1999 No 28 s 15
s 89A	ins 1999 No 28 s 15
s 90	am 1999 No 28  s 16
s 91	am 1957 No 14  (as am by 1989 No 38); 1999 No 28  s 17; 1999
No 66 s 6 sch 3
s 93	am 1999 No 28  s 18
s 94	om 1957 No 14
div 6 of pt 3 (s 94)	ins 1999 No 66 s 6 sch 3
s 94	ins 1999 No 66 s 6 sch 3
ss 94A-94E	ins 1999 No 66 s 6 sch 3
s 97	om 1957 No 14
s 98	am 1957 No 14
s 101	om 1957 No 14
s 102	sub 1957 No 14
s 103A	ins 1999 No 66 s 6 sch 3
s 104	om 1957 No 14
hdg preceding s 105	om 1957 No 14
ss 105, 106	om 1957 No 14
pt 6 (ss 104-106)	ins 1999 No 28  s 19
ss 104-106	ins 1999 No 28 s 19
sch	om 1957 No 14
	ins 1999 No 66 s 6 sch 3

6	Table of earlier republications
Republication No	Amendments to	Republication date	
(1)	Act 1992 No 50	1 September 1992	
(2)	Act 1997 No 96	1 June 1998	
3	Act 1999 No 28	31 July 1999	
3A	Act 1999 No 28	31 July 1999	

©  Australian Capital Territory 1999

The Copyright Act 1968 of the Commonwealth permits certain reproduction and publication of this legislation.  For reproduction or publication beyond that permitted by the Act, written permission must be sought from the Government Printer, c/o Information Management and Libraries, Department of Urban Services, ACT Government, GPO Box 158, Canberra City ACT 2601.