Trustee Banks Act 1985

Trustee Banks Act 1985

An Act to amend and consolidate the law relating to trustee banks and to amend the Companies (Application of Laws) Act 1982

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - Preliminary

1.   Short title

This Act may be cited as the Trustee Banks Act 1985 .

2.   Commencement

(1)  This section and section 1 shall commence on the day on which this Act receives the Royal Assent.

(2)  Except as provided in subsection (1) , this Act shall commence on such day as may be fixed by proclamation.

3.   Interpretation

(1)  [Section 3 Subsection (1) amended by No. 42 of 1993, s. 4 ]In this Act, unless the contrary intention appears –

advance includes loan;

Banking Act means the Banking Act 1959 of the Commonwealth and includes the regulations made and in force under that Act;

board means the board of directors of a trustee bank;

Commissioner means the Commissioner for Corporate Affairs;

corporation has the same meaning as in the Companies (Tasmania) Code ;

Court means the Supreme Court;

deposit includes interest on a deposit;

depositor, when used in relation to a trustee bank, means a person who deposits money with the bank;

director means a director of a trustee bank;

financial year, when used in relation to a trustee bank, means the financial year specified in the rules of that bank;

general council means the general council of a trustee bank;

general meeting means a general meeting of a general council;

principal officer means a principal officer of a trustee bank;

Register of Trustee Banks means the Register of Trustee Banks in existence immediately before the commencement of section 21 (c) of the Trust Bank (Arrangements) Act 1991 ;

registered company auditor has the same meaning as in the Companies (Tasmania) Code ;

rules means the rules of a trustee bank in force from time to time;

secretary means the secretary of a trustee bank appointed under section 14 (3) (j) ;

trustee bank means a trustee bank registered in the Register of Trustee Banks.

(2)  Where a document is required under this Act to be lodged with the Commissioner, it shall be lodged with the Commissioner at the Corporate Affairs Office.

(3)  For the purposes of this Act, a corporation shall, subject to the provisions of subsection (5) , be deemed to be a subsidiary of another corporation or trustee bank if –

(a) that other corporation or trustee bank –

(i) controls the composition of the board of directors of the first-mentioned corporation;

(ii) controls more than half of the voting power of the first-mentioned corporation; or

(iii) holds more than half of the issued share capital of the first-mentioned corporation (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

(b) the first-mentioned corporation is a subsidiary of any corporation that is that other corporation's subsidiary or trustee bank's subsidiary.

(4)  For the purposes of subsection (3) , the composition of a corporation's board of directors shall be deemed to be controlled by another corporation or a trustee bank if that other corporation or trustee bank by the exercise of some power exercisable by it without the consent or concurrence of any other person can appoint or remove all or a majority of the directors, and, for the purposes of this subsection, that other corporation or trustee bank shall be deemed to have power to make such an appointment if –

(a) a person cannot be appointed as a director without the exercise in his favour by that other corporation or trustee bank of such a power; or

(b) a person's appointment as a director follows necessarily from his being a director or other officer of that other corporation or trustee bank.

(5)  In determining whether one corporation is a subsidiary of another corporation or trustee bank –

(a) any shares held or power exercisable by that other corporation or trustee bank in a fiduciary capacity shall be treated as not held or exercisable by it;

(b) subject to paragraphs (c) and (d) , any shares held or power exercisable –

(i) by a person as a nominee for that other corporation or trustee bank (except where that other corporation or trustee bank is concerned only in a fiduciary capacity); or

(ii) by, or by a nominee for, a subsidiary of that other corporation or trustee bank, not being a subsidiary that is concerned only in a fiduciary capacity –

shall be treated as held or exercisable by that other corporation or trustee bank;

(c) any shares held or power exercisable by a person by virtue of the provisions of any debentures of the first-mentioned corporation or of a trust deed for securing an issue of any such debentures shall be disregarded; and

(d) any shares held or power exercisable by, or by a nominee for, that other corporation or trustee bank, or a subsidiary of that other corporation or trustee bank (not being held or exercisable as mentioned in paragraph (c) ), shall be treated as not held or exercisable by that other corporation or trustee bank if the ordinary business of that other corporation or trustee bank or a subsidiary of that other corporation or trustee bank, as the case may be, includes the lending of money and the shares are held or power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.

(6)  A reference in this Act to the holding trustee bank of a corporation shall be read as a reference to a trustee bank of which that corporation is a subsidiary.

(7)  A reference in this Act to the holding company of a corporation shall be read as a reference to a corporation of which that first-mentioned corporation is a subsidiary.

(8)  Where a corporation –

(a) is the holding company or holding trustee bank of another corporation;

(b) is a subsidiary of another corporation; or

(c) is a subsidiary of the holding company or holding trustee bank of another corporation –

that first-mentioned corporation and that other corporation shall, for the purposes of this Act, be deemed to be related to each other.

PART II - Objects and Powers

4.   Objects

The objects of a trustee bank are –

(a) to conduct the business of banking; and

(b) to exercise the powers given to trustee banks by this Act –

for the benefit of the persons who deposit money in the bank.

5.   Powers

(1)  Subject to the Banking Act and Part VI of this Act, a trustee bank may –

(a) acquire and hold such property as is necessary, advantageous, or useful for the attainment of its objects and dispose of that property if it considers it is no longer necessary, advantageous, or useful for the attainment of its objects;

(b) accept deposits of money;

(c) make advances of money;

(d) invest in securities of such classes as the general council may determine;

(e) acquire, hold, and dispose of interests in any corporation or association that can supply, provide, or make available such property as is referred to in paragraph (a) ;

(f) participate, in such manner as it thinks fit, in any corporation or venture established for the economic development of the State that the Governor, by order-in-council, approves for the purpose;

(g) carry on any financial or commercial business or service that –

(i) can be conveniently carried on in conjunction with the business of banking; or

(ii) is, at the time it is begun, carried on by one or more banks authorized to carry on banking business under the Banking Act ;

(h) mortgage, pledge, lease, or hire any of its assets for its commercial advantage;

(i) do anything in respect of which it is able to use its money under section 19 (1) ; and

(j) notwithstanding anything contained in paragraphs (a) to (i) , do anything necessary or proper for the attainment of its objects.

(2)  [Section 5 Subsection (2) added by No. 2 of 1991, s. 21 ]A trustee bank may issue debentures, notes and securities, including perpetual notes and subordinated debt, if the Treasurer is satisfied that the purpose of the issue is to enhance the capital base of the bank.

PART III - .  .  .  .  .  .  .  .  

6.   

7.   

8.   

PART IV - Existing Savings Bank

9.   Continuation

[Section 9 Substituted by No. 54 of 1987, s. 43 ]The Hobart Savings Bank incorporated under the Savings Bank Act 1917 shall continue in existence under this Act as a trustee bank, with no change in its accrued rights and liabilities but with the powers given, and the constitution, duties, and obligations imposed, by this Act in relation to trustee banks.

10.   Provision with respect to registration of bank named in section 9

[Section 10 Substituted by No. 54 of 1987, s. 43 ]The bank named in section 9 shall be deemed to have been registered in the Register of Trustee Banks from the day fixed under section 2 (2) of this Act until it was registered by the Commissioner under this section, as in force before the day fixed under section 2 (2) of the Tasmania Bank Act 1987 .

PART V - Constitution and Management

11.   General council

(1)  A trustee bank shall have a general council for the oversight of its affairs.

(2)  [Section 11 Subsection (2) amended by No. 2 of 1991, s. 21 ]The general council shall, subject to section 45 , consist of not more than 40 and not less than 10 persons ordinarily resident in this State.

(3)  When there is a vacancy in the general council, the trustee bank may apply to a judge in chambers to approve a person to fill the vacancy and if he approves that person the judge may appoint him to fill the vacancy.

(4)  The office of a member of the general council becomes vacant –

(a) if he resigns his office by notice in writing delivered to the secretary;

(b) if he becomes ordinarily resident outside this State;

(c) if he becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors, or makes an assignment of his remuneration or estate for their benefit;

(d) if he becomes liable to be detained under the Mental Health Act 1963 in a hospital, being a hospital within the meaning of section 3 (1) of that Act ;

(e) if he is convicted in this State of an offence which is punishable by imprisonment for 12 months or upwards, or if he is convicted elsewhere than in this State of an offence which, if committed in this State, would be a crime or an offence so punishable, or has been convicted, whether in this State or elsewhere, of a crime or offence for which he has been sentenced to imprisonment;

(f) if he is removed from office by the Supreme Court on the application of the trustee bank;

(g) when he attains the age of 75 years; or

(h) when he dies.

(5)  If a doubt arises whether a member of the general council has ceased to hold office, the trustee bank may apply to a judge in chambers for a declaration on the matter and a judge may make a declaration on that matter which shall bind all parties concerned.

(6)  Except as provided in section 12 (3) , a member of the general council shall not be paid any salary as such a member or derive any profit from his office but may be repaid expenses actually incurred by him in performing the duties of that office.

(7)  A member of the general council shall not become an officer or employee of the trustee bank, and an officer or employee of the trustee bank shall not become a member of the general council.

12.   Directors

(1)  The general council shall elect so many, but not less than 5, of its members as the rules prescribe to be the directors, and those directors shall constitute the board of directors.

(2)  [Section 12 Subsection (2) substituted by No. 56 of 1995, s. 4 ]At each annual general meeting one third of the directors or, if their number is not 3 or a multiple of 3, the number nearest one third of the directors, must retire from office.

(2AA)  [Section 12 Subsection (2AA) inserted by No. 56 of 1995, s. 4 ]The directors who are required to retire from office in accordance with subsection (2) are the directors who have been longest in office since their election or re-election.

(2AB)  [Section 12 Subsection (2AB) inserted by No. 56 of 1995, s. 4 ]The directors who have been in office for an equal period of time must determine, by lot, which of them is to retire from office in accordance with subsection (2) .

(2AC)  [Section 12 Subsection (2AC) inserted by No. 56 of 1995, s. 4 ]A director may be re-elected for a further term or terms.

(2AD)  [Section 12 Subsection (2AD) inserted by No. 56 of 1995, s. 4 ]A director ceases to hold office if the director ceases to be a member of the general council.

(2A)  [Section 12 Subsection (2A) inserted by No. 42 of 1993, s. 5 ]A director may resign office as a director by written notice delivered to the secretary.

(3)  [Section 12 Subsection (3) amended by No. 56 of 1995, s. 4 ]A director may be paid and receive such remuneration as is –

(a) determined by the general council under section 13 (4) (ab) ; and

(b) approved by the Governor.

(3A)  [Section 12 Subsection (3A) inserted by No. 56 of 1995, s. 4 ]The remuneration of the directors determined by the general council and approved by the Governor –

(a) is payable from the date of the determination by the general council; and

(b) continues to be payable to the directors while they remain in office until that remuneration is varied by another determination of the general council and approved by the Governor.

(4)  If a vacancy occurs in the office of a director, the board may appoint a member of the general council to be a director until the next annual general meeting.

12A.   General manager may be appointed director

[Section 12A Inserted by No. 2 of 1991, s. 21 ]

(1)  Notwithstanding section 12 , the board may appoint the person holding the office of general manager to be a director.

(2)  The person appointed as a director under subsection (1) shall not by virtue of that appointment become a member of the general council.

13.   Meetings and powers of council

(1)  There shall be an annual general meeting of the general council held in every financial year of the trustee bank.

(2)  The board shall determine the date of the annual general meeting, and shall give notice, in writing, of the meeting to each member of the general council.

(3)  A notice referred to in subsection (2) shall specify the time, date, and place of, and the business to be dealt with at, the meeting.

(4)  [Section 13 Subsection (4) amended by No. 56 of 1995, s. 5 ]At an annual general meeting, the general council –

(a) must elect directors in accordance with this Act and the rules;

(ab) must determine the remuneration of the directors;

(b) must appoint auditors and determine their remuneration;

(c) must review the operations of the trustee bank in the preceding financial year and consider the report of the board made under section 29 , statement of accounts, and balance sheet;

(d) may, subject to section 15 , alter the rules; and

(e) may do such other business, specified in the notice of meeting, as it thinks fit.

(5)  The board may cause a special general meeting to be held and shall give notice in writing of the meeting specifying the time, date, and place of, and the business to be dealt with at, the meeting to each member of the general council at least 21 days before the date of the meeting.

(6)  At a special general meeting, the general council may –

(a) remove a director from office;

(b) subject to section 39 , remove an auditor from office;

(c) fill a vacancy in the office of director or auditor;

(d) subject to section 15 , alter the rules; and

(e) do such other business, specified in the notice of meeting, as it thinks fit.

(7)  At a general meeting –

(a) the chairman of the board shall preside or, in his absence, the members of the general council present shall elect one of their number to preside at the meeting; and

(b) the quorum shall be the number of members of the general council that would constitute a majority if all the members of the general council were present.

(8)  For the purposes of this section, alter in relation to rules includes –

(a) the insertion of a new rule;

(b) the insertion of a new rule in substitution of an existing rule;

(c) the amendment of an existing rule; and

(d) the rescission of an existing rule.

14.   The board

(1)  The board shall, at its first meeting after an annual general meeting of the general council and whenever it is necessary to do so, elect a director to be its chairman.

(2)  The quorum at meetings of the board shall be the number of directors that would constitute a majority if all the directors were present.

(3)  [Section 14 Subsection (3) amended by No. 2 of 1991, s. 21 ]The board –

(a) shall determine the administrative and, subject to the Banking Act and Part VI of this Act, the financial policy of the trustee bank;

(b) shall fix the rates of interest payable on advances by the trustee bank;

(c) shall fix the rates of interest payable on deposits with the trustee bank;

(d) shall fix the time for crediting or payment of interest payable on such deposits;

(e) shall determine the disposition and investment of money held by the trustee bank;

(f) shall establish the reserve funds of the trustee bank and determine the amounts of money held by the bank to be transferred to those reserve funds to meet the demands (both current and future) on the bank;

(g) may appoint a general manager and such other officers and employees as it thinks necessary;

(h) shall appoint not less than 3 officers of the trustee bank as principal officers;

(i) may delegate such of its functions or powers to one or more of the principal officers in cases or classes of cases specified by the board;

(j) may appoint a secretary; and

(k) may do all such other things as it thinks proper for the profitability and good management of the trustee bank.

15.   Rules

[Section 15 Subsection (1) amended by No. 56 of 1995, s. 6 ]

(1)  [Section 15 Subsection (1) amended by No. 42 of 1993, s. 6 ]The rules of a trustee bank shall –

(a) specify the number of its directors;

(ab) provide for the election, re-election and retirement from office by rotation of its directors;

(b) specify its financial year for the purposes of its accounts and financial affairs; and

(c) provide for such matters as this Act specifies shall be determined by the rules.

(2)  The rules of a trustee bank may –

(a) provide for the employment, remuneration, and regulation of officers and employees of the bank;

(b) require security for the due performance of the financial duties of those officers and employees;

(c) provide for the giving of receipts and discharges and the execution of instruments;

(d) provide for execution by attorney of such instruments; and

(e) provide generally for the management, administration, and business of the bank.

(3)  Before the general council may alter the rules, its members shall be provided with a certificate of a legal practitioner or barrister certifying that, if the proposed alteration is agreed to, the rules as a whole will comply with this Act and the Banking Act .

(4)  Where the general council has altered the rules, it shall cause a copy of the alteration, together with a copy of the resolution making the alteration and a copy of the certificate referred to in subsection (3) , to be lodged with the Commissioner within 7 days after the passing of the resolution.

(5)  On receipt of a copy of an alteration referred to in subsection (4) , the Commissioner may –

(a) approve the rules, as altered; or

(b) where he is of the opinion that the rules, as altered, do not comply with this Act, he may, by notice in writing served on the trustee bank, require the bank to amend those rules in the manner specified in the notice.

(6)  Any alteration of the rules made by the general council shall be of no effect until it is approved by the Commissioner and, where the Commissioner has approved an alteration, the alteration shall be deemed to be incorporated with the rules.

(7)  Any member of the public attending at the principal office of a trustee bank during the hours that the bank is ordinarily open for business may inspect the rules free of charge.

(8)  For the purposes of this section, alter in relation to rules includes –

(a) the insertion of a new rule;

(b) the insertion of a new rule in substitution of an existing rule;

(c) the amendment of an existing rule; and

(d) the rescission of an existing rule.

(9)  The rules of a trustee bank shall be binding on the directors and other members of the general council, officers, and employees of the trustee bank, the depositors of the trustee bank and their representatives, and all other persons interested in or connected with the trustee bank.

PART VA - Duties and Liabilities of Officers of Trustee Bank

16.   Interpretation: Part VA

[Section 16 Substituted by No. 42 of 1993, s. 7 ]

(1)  In this Part, unless the contrary intention appears, officer, in relation to a trustee bank, means a director, a member of the general council, the general manager, a principal officer or the secretary.

(2)  Each of the following is an entity:

(a) a body corporate;

(b) a partnership;

(c) an unincorporated body;

(d) an individual;

(e) a trustee of a trust that has only one trustee.

(3)  If a trust has 2 or more trustees, those trustees together constitute an entity.

(4)  Each of the following is a related party of a trustee bank:

(a) an officer of the trustee bank;

(b) a spouse or de facto spouse of an officer of the trustee bank;

(c) a parent, son or daughter of such an officer, spouse or de facto spouse;

(d) an entity (other than a subsidiary of the trustee bank) over which –

(i) a person of a kind referred to in paragraph (a) , (b) or (c) has control; or

(ii) 2 or more such persons together have control.

16A.   Officers to disclose certain interests

[Section 16A Inserted by No. 42 of 1993, s. 7 ]

(1)  Subject to this section, an officer who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the trustee bank must, as soon as practicable after the relevant facts have come to the officer's knowledge, by notice in writing to the secretary declare the nature of the interest.

(2)  For the purposes of subsection (1) , an officer has an interest in a contract or a proposed contract with the trustee bank if –

(a) a spouse or de facto spouse of the officer has an interest in the contract or proposed contract; or

(b) a parent, son or daughter of the officer or of the spouse or de facto spouse of the officer has an interest in the contract or proposed contract; or

(c) an entity over which –

(i) a person of a kind referred to in paragraph (a) or (b) has control; or

(ii) 2 or more such person together have control –

has an interest in the contract or proposed contract.

(3)  On receipt of a notice under subsection (1) , the secretary must notify the nature of the interest to the members of the board before the commencement of the next meeting of the board and to the members of the general council before the commencement of the next meeting of the general council.

(4)  An officer of a trustee bank is not taken to be, or to have been at any time, interested in a contract or proposed contract merely because –

(a) where the contract or proposed contract relates to a loan by the trustee bank – the officer has guaranteed or joined in guaranteeing the repayment of the loan or any part of the loan; or

(b) where the contract or proposed contract has been or will be made with or for the benefit of or on behalf of a body corporate that is related to the trustee bank – the officer is a director of that body corporate.

(5)  For the purposes of subsection (1) , a general notice given to the secretary by an officer to the effect that the officer is an officer or member of a specified body corporate or a member of a specified firm and is to be regarded as interested in any contract that may, after the date of the notice, be made with that body corporate or firm is deemed to be a sufficient declaration of interest in relation to any contract so made or proposed to be made if –

(a) the notice states the nature and extent of the officer's interest in the body corporate or firm; and

(b) when the question of confirming or entering into the contract is first taken into consideration, the extent of the officer's interest in the body corporate or firm is not greater than is stated in the notice; and

(c) the notice is given to the secretary in sufficient time for it to be tabled at the next meeting of the board and the general council after it is given.

(6)  Subject to this section, an officer of a trustee bank who holds any office or possesses any property whereby, whether directly or indirectly, duties or interests might be created in conflict with his or her duties or interests as an officer must, in accordance with subsection (7) , by notice in writing to the secretary declare the fact and the nature, character and extent of the conflict.

(7)  A declaration required by subsection (6) in relation to the holding of an office or the possession of any property is to be made by a person –

(a) where the person holds the office or possesses the property as mentioned in subsection (6) when the person becomes an officer of the trustee bank –

(i) as soon as practicable after the person becomes an officer; or

(ii) as soon as practicable after the relevant facts as to the holding of the office or the possession of the property come to the person's knowledge –

whichever is later; or

(b) where the person begins to hold the office or comes into possession of the property as mentioned in subsection (6) after the person becomes an officer of the trustee bank – as soon as practicable after the relevant facts as to the holding of the office or the possession of the property come to the person's knowledge.

(8)  Where the secretary is the officer who is required to comply with subsection (1) or (6) , the secretary must give notice of the matter arising under those subsections to the senior principal officer.

(9)  On receipt of a notice under subsection (8) , the senior principal officer must perform the duties of the secretary which are relevant to the notice.

16B.   Register of disclosures of interests

[Section 16B Inserted by No. 42 of 1993, s. 7 ]

(1)  The secretary must –

(a) keep a register containing all disclosures of interests made under section 16A by an officer of the trustee bank; and

(b) ensure that the register is available for inspection by the directors, members of the general council and the auditors of the trustee bank and the Commissioner or a person nominated by the Commissioner.

(2)  The secretary must, within 7 days after receiving notice of a disclosure of an interest from an officer of the trustee bank, enter that disclosure on the register referred to in subsection (1) .

16C.   Officers to act honestly, exercise care and diligence, &c.

[Section 16C Inserted by No. 42 of 1993, s. 7 ]

(1)  An officer of a trustee bank must at all times act honestly in the exercise of his or her powers and the discharge of the duties of his or her office.

(2)  The penalty applicable to a contravention of subsection (1) is –

(a) if the contravention was committed with intent to deceive or defraud the trustee bank, members or creditors of the trustee bank or creditors of any other person or for any other fraudulent purpose, a fine not exceeding 200 penalty units or imprisonment for a term not exceeding 5 years or both; or

(b) if otherwise, a fine not exceeding 50 penalty units.

(3)  In the exercise of his or her powers and the discharge of his or her duties, an officer of a trustee bank must exercise the degree of care and diligence that a reasonable person in a like position in a corporation would exercise in the corporation's circumstances.

(4)  An officer or employee of a trustee bank, or a former officer or employee of a trustee bank, must not make improper use of information acquired by virtue of his or her position as such an officer or employee to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the trustee bank.

(5)  An officer or employee of a trustee bank must not, in relevant circumstances, make improper use of his or her position as such an officer or employee to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the trustee bank.

16D.   Voting by interested director or member of general council

[Section 16D Inserted by No. 42 of 1993, s. 7 ]

(1)  A director or member of the general council who has a material personal interest in a matter that is being considered at a meeting of the board or the general council –

(a) must not vote on the matter; and

(b) must not be present while the matter is being considered at the meeting.

(2)  Subsection (1) does not apply to an interest that a director or member of the general council has in the matter where the result of the consideration of the matter affects all persons dealing with the bank in the same manner and in the same circumstances.

(3)  Subsection (1) does not apply to a matter proposed to be considered by the board if the general council has at any time passed a resolution that –

(a) specifies the director, the interest and the matter; and

(b) states that the members of the general council voting for the resolution are satisfied that the interest should not disqualify the director from considering or voting on the matter.

(4)  A quorum is not present during the consideration of a matter at a meeting of the board or the general council unless a majority of the directors or a majority of the members of the general council are present who are entitled to vote on any motion that may be moved at the meeting in relation to that matter.

(5)  A meeting of the general council may deal with a matter in so far as the board cannot deal with it because of subsection (4) .

(6)  If –

(a) a director proposes a resolution of the board referring a matter arising under this section to a meeting of the general council; and

(b) subsection (4) would prevent the proposed resolution from being considered –

subsections (1) and (4) do not apply in relation to a motion that relates to the proposed resolution.

16E.   Loans to, financial transactions with, and customer services provided to, related party of trustee bank

[Section 16E Inserted by No. 42 of 1993, s. 7 ]

(1)  In this section –

customer services means financial, travel, insurance and other services commonly provided by banks to their customers in the ordinary course of banking business;

financial transaction means a lease, hire-purchase agreement or other financing agreement or arrangement (by whatever name described).

(2)  A trustee bank or subsidiary of a trustee bank may provide a loan or other financial accommodation to, or make, or enter into, a financial transaction with, a related party of the trustee bank if it does so on terms and conditions no more favourable to the related party than those on which it is reasonable to expect that the trustee bank or subsidiary would give the loan or other financial accommodation or enter into the financial transaction if dealing with the related party at arm's length in the same circumstances.

(3)  The matters to consider for the purposes of subsection (2) include –

(a) in the case of a loan or other financial accommodation –

(i) the amount of the loan or the extent of the accommodation; and

(ii) what interest or charges are payable; and

(iii) the credit risk; and

(iv) what security is given; and

(v) the timetable of repayments and for payments of interest or charges; and

(b) in the case of a financial transaction, what discount, commission, credit or other consideration is given or received in respect of the transaction.

(4)  A trustee bank or a subsidiary of a trustee bank may provide customer services to a related party of the trustee bank if the customer services are provided on terms and conditions no more favourable to the related party than those on which it is reasonable to expect would ordinarily be available to customers of the bank or other persons dealing with the bank in similar circumstances.

(5)  Subsections (2) and (4) do not apply to the provision of –

(a) any benefit provided generally to employees of the trustee bank in respect of which the managing director, general manager, principal officers and secretary may participate if the scheme providing the benefit to the employees is approved by the general council; or

(b) any benefit not generally available to persons dealing with the bank if the benefit is part of the remuneration package of the managing director, general manager, principal officers or secretary and if the board is satisfied, acting on independent advice, that the remuneration package which includes the benefit, is reasonable in all the circumstances.

16F.   Related party of trustee bank may lend money to, make deposits with, &c., trustee bank

[Section 16F Inserted by No. 42 of 1993, s. 7 ]A related party of a trustee bank may lend money to, or deposit money with, the trustee bank or purchase from the trustee bank financial assets of the bank or enter into other transactions with the trustee bank commonly entered into between banks and their customers (other than transactions referred to in section 16E ) if the loan, deposit or purchase or other transaction entered into is on terms and conditions no more favourable to the related party than those which it is reasonable to expect would ordinarily be available to customers of the bank or other persons dealing with the bank in similar circumstances.

16G.   Supply of goods or services, &c., by related party to trustee bank

[Section 16G Inserted by No. 42 of 1993, s. 7 ]A related party of a trustee bank may supply goods or services to, or carry out work for, the trustee bank if –

(a) it does so on terms and conditions which are no more favourable to the related party than those which it is reasonable to expect the trustee bank could obtain from any other person in similar circumstances; and

(b) in the case of the supply of goods or services or the carrying out of work by a director or member of the general council, the director or member of the general council has made a disclosure under section 16A of his or her interest in the contract for the supply of the goods or services or the carrying out of the work.

16H.   Compensation for, and recovery of, loss, &c., by trustee bank

[Section 16H Inserted by No. 42 of 1993, s. 7 ]

(1)  Where –

(a) a person is convicted of an offence for a contravention of section 16C (1) ; and

(b) the court is satisfied that the trustee bank has suffered loss or damage as a result of the act or omission that constituted the offence –

the court by which the person is convicted may, in addition to imposing a penalty, order the convicted person to pay compensation to the trustee bank of such amount as that court specifies, and any such order may be enforced as if it were a judgment of that court.

(2)  Where a person contravenes a provision of section 16A , 16C or 16D in relation to a trustee bank, the trustee bank may, whether or not the person has been convicted of an offence in respect of that contravention, recover from the person in a court of competent jurisdiction –

(a) if that person or any other person made a profit as a result of the contravention – an amount equal to that profit; and

(b) if the trustee bank has suffered loss or damage as a result of the contravention – an amount equal to that loss or damage.

(3)  Subsection (2) does not apply if an order has been made under subsection (1) .

(4)  Where an officer of a trustee bank takes a benefit from the bank or causes any third party to receive a benefit from the bank otherwise than is permitted by sections 16E , 16F or 16G , the trustee bank is entitled to recover from the officer in a court of competent jurisdiction any loss or damage suffered as a result of the taking or receiving of the benefit.

(5)  Where the third party referred to in subsection (4) is knowingly concerned in the receiving of the benefit, the trustee bank is entitled to recover from the third party and the officer of the trustee bank jointly and severally in a court of competent jurisdiction any loss or damage suffered as a result of the receiving of the benefit.

(6)  This section and sections 16A , 16C , 16D , 16E , 16F and 16G have effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person by reason of the person's office or employment in relation to a trustee bank and do not prevent the institution of any civil proceedings in respect of a breach of such a duty or in respect of such a liability.

PART VI - Finance

17.   Deposits

(1)  A trustee bank may, subject to subsection (2) , receive a deposit of money from any person on terms and conditions determined by the board or, if the board so decides, by a majority of the principal officers.

(2)  The board may –

(a) determine an amount under which a deposit for a specific account shall be accepted;

(b) in other cases, determine either specially or by a general resolution the maximum amount that may be deposited in a specific account; and

(c) determine the total amount that any person or class of persons may have on deposit at any one time.

(3)  Notwithstanding section 14 (3) (c) , the board may delegate the fixing of rates of interest on deposits to all the principal officers who shall, by a majority, do so.

(4)  A decision of a majority of the principal officers under subsection (1) or (3) shall take effect on and from a date determined by them and they shall report that decision to the secretary immediately.

(5)  On receipt of the report of the decision referred to in subsection (4) , the secretary shall advise the board of the decision and the board may revoke that decision.

(6)  A revocation under subsection (5) shall take effect on such date as the board determines, being a date not earlier than the date on which the decision to revoke was made.

(7)  Where a decision of the principal officers has been revoked by the board under subsection (5) , the terms and conditions determined, or the rate of interest fixed, in relation to a deposit by the principal officers shall apply until that revocation takes effect.

(8)  Rates of interest on deposits may differ according to –

(a) the amount of the deposit;

(b) whether the deposit is at call or for a period; and

(c) if for a period, the length of the period.

18.   Advances

(1)  A trustee bank may make an advance to a depositor.

(2)  An advance to a depositor may be made –

(a) without security; or

(b) upon such security, real or personal, as the board considers proper.

(3)  An advance to a depositor shall –

(a) not exceed an amount determined as provided by the rules according to the nature and quality of the security or the lack of it; and

(b) be made on such information, reports, and valuations as the trustee bank considers proper.

19.   Other employment of money

(1)  A trustee bank may use all money deposited with it and all its other money in the following ways:

(a) by investment in any manner in which trustees may invest trust funds under the Trustee Act 1898 ;

(b) the acquisition of land required wholly or partly by it for the purposes of its business or intended by it to be so used in the future;

(c) the acquisition of plant, machinery, equipment, furniture, or services required for the purposes of its business;

(d) the subscription for, or acquisition of, shares or other interests in any company as defined in the Companies (Tasmania) Code , building society, co-operative industrial society, credit union, or joint venture, the business of which includes the provision to banks and other persons of the benefit of property or services mentioned in paragraphs (b) and (c) ;

(e) the subscription for, or acquisition of, shares or other interests in any such company, society, union, or venture, the business of which is that of a finance company, and which includes leasing, hire-purchase, and the provision of credit in any form and by any means;

(f) the acquisition of a franchise or the making of an arrangement in respect of the right to conduct its business at places other than its own branches;

(g) the acquisition and development of building estates, buildings, and land for the purpose of providing housing for its depositors, and the financing of persons to do the same;

(h) the undertaking to act, and acting, as agent for a principal conducting any form of business that the board considers may be conveniently conducted by the bank as such agent in conjunction with its own business.

(2)  A trustee bank may, in the course of its business, sell, mortgage, pledge, or otherwise deal with any of its property in any manner allowed by the rules.

20.   Deposits by trustees

(1)  Where a trustee bank repays a deposit knowing it to be subject to a trust, the receipt of –

(a) the depositor, or depositors if the deposit was made by 2 or more persons jointly;

(b) the survivors or last survivor of such joint depositors; or

(c) the personal representative of such single depositor or last survivor of such joint depositors.

shall be a good and sufficient discharge of the bank in relation to that deposit.

(2)  If there is no person referred to in subsection (1) (a) or (b) , the receipt of the person appearing to the board to be the beneficiary of the trust is a good and sufficient discharge of the trustee bank in relation to the deposit.

(3)  Where a trustee bank holds a deposit made in the name of an unincorporated association, it may rely on a statement in writing relating to the repayment of that deposit, made and signed by –

(a) any 2 or more persons authorized by the association to receive the deposit or part of the deposit on its behalf; or

(b) a person purporting to be the chairman of a general meeting of the association –

that the persons named in the statement are authorized by the association to receive the deposit or part of the deposit on its behalf.

21.   Deposits by minors

If a trustee bank holds a deposit made by, or on behalf of, a person under the age of 18 years, it may in its discretion pay out the deposit to that person and his receipt shall be a good and sufficient discharge of the bank in relation to that deposit.

22.   Payment on death of certain depositors

(1)  Where a depositor of an amount (leaving out of account accrued interest) not exceeding $10 000 or, if another amount is prescribed, that other amount, dies, and –

(a) where –

(i) probate of the deceased depositor's will;

(ii) letters of administration of the deceased depositor's estate;

(iii) notice in writing of the existence of the deceased depositor's will and the intention of a person to prove it; or

(iv) notice in writing of the intention of a person to take out letters of administration of the deceased depositor's estate –

has not been given to the trustee bank within one month after the death of the depositor; or

(b) where a notice referred to in paragraph (a) (iii) or (iv) has been given to the trustee bank and –

(i) the will of the deceased depositor has not been proved; or

(ii) letters of administration of the deceased depositor's estate have not been taken out –

within 2 months after the death of the depositor –

a trustee bank may, subject to subsection (2) , pay the deceased depositor's deposit with all accruing interest on it to any persons appearing to the board to be entitled to that deceased depositor's estate under Part V of the Administration and Probate Act 1935 or any testamentary document made by the deceased depositor in such proportions as are indicated by that Act or testamentary document.

(2)  A trustee bank may refuse to pay any money under subsection (1) to a person claiming it unless that person lodges with the bank a statutory declaration as to his identity and entitlement in respect of his claim.

(3)  A payment made under subsection (1) to a person is valid and effectual with respect to any demand against the trustee bank by any other person as next of kin, beneficiary, or personal representative of the deceased depositor or otherwise.

(4)  Notwithstanding subsection (3) , a person with a claim as next of kin, beneficiary, or personal representative may recover any amount to which he is entitled from any person who has received it under subsection (1) .

23.   Change of name

(1)  A trustee bank may apply, in writing, to the Commissioner for approval of a name to which it proposes to change its name and the Commissioner may, by notice in writing served on the trustee bank, approve or reject that name.

(2)  The general council may, by special resolution, change the name of the trustee bank to a name that has been approved by the Commissioner.

(3)  Where the general council has changed the name of the trustee bank by special resolution under subsection (2) , the bank shall notify the Commissioner of that fact and the Commissioner shall –

(a) substitute the new name for the old name in the Register of Trustee Banks; and

(b) at the trustee bank's expense, by notice published in the Gazette, notify that substitution.

(4)  A change of name of a trustee bank in accordance with this section does not operate –

(a) to create a new legal entity;

(b) to prejudice or affect the identity of the trustee bank or its continuity as a trustee bank;

(c) to affect the property, or the rights or obligations, of the trustee bank; or

(d) to render defective any legal proceedings by or against the trustee bank –

and any legal proceedings that could have been continued or commenced by or against the trustee bank under its old name may be continued or commenced by or against it under its new name.

(5)  Where a trustee bank has changed its name in accordance with this section, the Recorder of Titles may register an instrument relating to a prescribed estate or interest executed by the bank under its new name if the instrument is in a registrable form notwithstanding that the bank under its new name is not recorded as the registered proprietor of that prescribed estate or interest in the Register kept under the Land Titles Act 1980 .

(6)  For the purposes of subsection (5) –

prescribed estate or interest means an estate or interest in land under the Land Titles Act 1980 , which estate or interest is registered in the name of the trustee bank under its old name.

(7)  Where a trustee bank has changed its name in accordance with this section, the trustee bank shall, within a period of 14 days from the date on which the resolution effecting the change of name was passed, lodge a copy of the notice referred to in subsection (3) (b) with the Registrar of Deeds who shall register the copy of that notice as if it were an instrument within the meaning of the Registration of Deeds Act 1935 .

(8)  Where the Registrar of Deeds has registered a copy of a notice referred to in subsection (3) (b) , the trustee bank under its new name may deal with property in respect of which the Registration of Deeds Act 1935 applies in the same way as the trustee bank under its old name could have done if the change of name had not taken place.

24.   Provisions relating to resolution to change name

(1)  For the purposes of section 23 , a resolution is a special resolution of a trustee bank if –

(a) it is passed at a meeting of the bank, being a meeting of which not less than 21 days' written notice specifying the intention to propose the resolution as a special resolution has been duly given; and

(b) it is passed at a meeting referred to in paragraph (a) by a majority of not less than three-quarters of the members of the general council present and voting.

(2)  At a general meeting at which a special resolution is submitted, the declaration of the person presiding at the meeting that the resolution is carried is, unless a poll is demanded, conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.

(3)  At a general meeting at which a special resolution is submitted, a poll shall be deemed to be effectively demanded if demanded –

(a) if the rules make provision permitting a specified number of members of the general council to demand a poll –

(i) where the number specified does not exceed 5 – by that number of members; or

(ii) in any other case – by 5 members; or

(b) if no such provision is made by the rules, by 3 members.

(3)  For the purposes of this section, notice of a meeting shall be deemed to be duly given and the meeting shall be deemed to be duly held when the notice is given and the meeting held in the manner provided by this Act or by the rules.

PART VII - Administration

Division 1 - Preliminary

25.   Interpretation of Part VII

In this Part, unless the contrary intention appears –

accounts means profit and loss accounts and balance sheets and includes statements, reports, and notes, other than auditors' reports and reports of the board, attached to or intended to be read with any of those profit and loss accounts or balance sheets;

current assets, in relation to accounts, means assets which would in the ordinary course of events produce the receipt of money within 12 months after the end of the financial year to which the accounts relate;

group accounts, in relation to a holding trustee bank, means –

(a) a set of consolidated accounts for the group of companies of that holding trustee bank;

(b) two or more sets of consolidated accounts together covering that group;

(c) separate accounts for each corporation in that group; or

(d) a combination of one or more sets of consolidated accounts and one or more separate accounts together covering that group;

group of companies, in relation to a holding trustee bank, means the holding trustee bank and the corporations that are subsidiaries of that bank;

holding company means a company that is the holding company of a corporation;

holding trustee bank means a trustee bank that is the holding trustee bank of a corporation;

non-current asset means an asset that is not a current asset;

the profit or loss means –

(a) in relation to a trustee bank that is not a holding trustee bank – the profit or loss resulting from operations of that bank;

(b) in relation to a trustee bank that is a holding trustee bank of a group of companies for which group accounts are required – the profit or loss resulting from operations of that bank; and

(c) in relation to a trustee bank referred to in paragraph (b) and its subsidiaries – the profit or loss resulting from operations of the group of companies of which that bank is the holding trustee bank.

Division 2 - Accounts

26.   Accounts to be kept

(1)  A trustee bank shall –

(a) keep such accounting records as correctly record and explain the transactions of the bank; and

(b) keep its accounting records in such manner as will enable –

(i) the preparation from time to time of true and fair accounts of the bank; and

(ii) the accounts of the bank to be conveniently and properly audited in accordance with this Part.

(2)  Subject to section 68W of the Evidence Act 1910 , a trustee bank shall retain the accounting records kept under this section and any similar records kept by it before the day fixed under section 2 (2) for a period of 7 years after the completion of the transaction to which they relate.

(3)  The Court may, on application by a director, make an order authorizing a registered company auditor acting for the director to inspect the accounting records of the trustee bank.

(4)  Where a registered company auditor inspects the accounting records pursuant to an order of the Court under subsection (3) , he shall not disclose to a person other than the director on whose application the order was made any information acquired by him in the course of his inspection.

(5)  A trustee bank shall make its accounting records available at all reasonable times for inspection without charge by a member of its general council and by any other person authorized or permitted by or under this Act to inspect the bank'saccounting records.

27.   Financial years of grouped companies

(1)  The board of a holding trustee bank shall take such action (if any) as is necessary to ensure that the financial year of each subsidiary of the holding trustee bank coincides with the financial year of that bank.

(2)  The action referred to in subsection (1) shall be taken in relation to a particular subsidiary not later than 12 months after the date on which the subsidiary became a subsidiary of the holding trustee bank.

(3)  Where the financial year of a holding trustee bank and the financial year of each of its subsidiaries coincide, the board of the holding trustee bank shall at all times take such action as is necessary to ensure that the financial year of that bank or any of its subsidiaries is not altered in such a way that all of those financial years no longer coincide.

28.   Annual accounts

(1)  The board shall, not less than 14 days before the annual general meeting, cause to be made out –

(a) a profit and loss account for the last financial year of the trustee bank, being a profit and loss account that gives a true and fair view of the profit or loss of the bank for that financial year; and

(b) a balance sheet as at the end of that last financial year, being a balance sheet that gives a true and fair view of the state of affairs of the trustee bank as at the end of that financial year.

(2)  Where, at the end of a financial year of a trustee bank, the bank is a holding trustee bank, the board shall, not less than 14 days before the next annual general meeting of the bank, cause to be made out group accounts dealing with –

(a) the profit or loss of the bank and its subsidiaries for their respective last financial years; and

(b) the state of affairs of the bank and its subsidiaries as at the end of their respective last financial years –

and giving a true and fair view of the profit or loss and state of affairs of the holding trustee bank and its subsidiaries.

(3)  The board shall take reasonable steps to ensure that the accounts of the trustee bank and, if it is a holding trustee bank for which group accounts are required, the group accounts are audited as required by this Act not less than 14 days before the annual general meeting of the bank.

(4)  The board shall cause to be attached to, or endorsed upon, the accounts or group accounts in relation to the trustee bank the auditor's report relating to those accounts or group accounts, as the case may be, that is furnished to the board in accordance with section 38 (2) .

(5)  The board shall, before the profit and loss account and balance sheet referred to in subsection (1) are made out, take reasonable steps –

(a) to ascertain what action has been taken in relation to the writing off of bad debts and the making of provisions for doubtful debts and to cause all known bad debts to be written off and adequate provision to be made for doubtful debts;

(b) to ascertain whether any current assets, other than current assets to which paragraph (a) applies, are unlikely to realize in the ordinary course of business their value as shown in the accounting records of the trustee bank, and, if so, to cause –

(i) those assets to be written down to an amount that they might be expected to realize; or

(ii) adequate provision to be made for the difference between the amount of the value as shown and the amount that they might be expected to realize; and

(c) to ascertain whether any non-current asset is shown in the books of the trustee bank at an amount that, having regard to its value to the bank as a going concern, exceeds the amount that would have been reasonable for the bank to expend to acquire that asset as at the end of the financial year and unless adequate provision for writing down that asset is made, to cause to be included in the accounts such information and explanations as will prevent the accounts from being misleading by reason of the overstatement of the amount of that asset.

(6)  Without affecting the generality of the preceding provisions of this section, the board shall ensure that the accounts of the trustee bank and, if it is a holding trustee bank for which group accounts are required, the group accounts comply with such of the requirements prescribed under the Companies (Tasmania) Code as are relevant to those accounts or group accounts, as the case may be, as if the trustee bank were a company and the holding trustee bank were a holding company, but where accounts or group accounts prepared in accordance with those requirements would not otherwise give a true and fair view of the matters required by this section to be dealt with in the accounts or group accounts, the board shall add such information and explanations as will give a true and fair view of those matters.

(7)  The board shall cause to be attached to any accounts required by section 32 to be laid before the general council at the annual general meeting of the trustee bank, before the auditor reports on the accounts under this Act, a statement made in accordance with a resolution of the board and signed by not less than 2 members of the board stating whether, in the opinion of the board –

(a) the profit and loss account is drawn up so as to give a true and fair view of the profit or loss of the bank for the financial year;

(b) the balance sheet is drawn up so as to give a true and fair view of the state of affairs of the bank as at the end of the financial year; and

(c) there are reasonable grounds to believe that the bank will be able to pay its debts as and when they fall due.

(8)  The board of a trustee bank that is a holding trustee bank shall cause to be attached to group accounts of the bank required by section 32 to be laid before the general council at the annual general meeting of the bank, before the auditor reports on the group accounts under this Act, a statement made in accordance with a resolution of the directors and signed by not less than 2 members of the board stating whether, in the opinion of the board, the group accounts are drawn up so as to give a true and fair view of –

(a) the profit or loss of the bank and its subsidiaries for their respective last financial years; and

(b) the state of affairs of the bank and its subsidiaries as at the end of their respective last financial years.

28A.   Accounts to comply with certain standards

[Section 28A Inserted by No. 42 of 1993, s. 8 ]

(1)  The accounts prepared under section 28 must comply with applicable accounting standards.

(2)  In this section –

applicable accounting standard means the standard that would apply to a trustee bank if the trustee bank were a corporation under the Corporations Law of Tasmania.

29.   Reports of the board

(1)  [Section 29 Subsection (1) amended by No. 2 of 1991, s. 21 ]The board of a trustee bank, other than a trustee bank to which subsection (2) applies, shall, not less than 14 days before the annual general meeting of the bank, cause to be made out in respect of the last financial year of the bank a report, made in accordance with a resolution of the board and signed by not less than 2 members of the board with respect to the profit or loss of the bank for that financial year and the state of the bank's affairs as at the end of that financial year, stating –

(a) the names of the members of the board in office at the date of the report;

(b) the principal activities of the bank in the course of the financial year and any significant change in the nature of those activities during that period;

(c) the net amount of the profit or loss of the bank for the financial year;

(d) where, at any time during the financial year, the bank was a holding trustee bank – the names of any subsidiaries acquired or disposed of during the financial year, the consideration for each such acquisition or disposal, and the amount in each case of the net tangible assets of the subsidiary acquired or disposed of and, in the case of a subsidiary not being a wholly-owned subsidiary, the extent of the bank's interest in the subsidiary;

(e) the amounts and particulars of any material transfers to or from reserves or provisions during the financial year;

(ea) where during the financial year the bank has issued any debentures, notes or securities – the classes of debentures, notes or securities issued and the amount, term and rate of debentures, notes or securities of each class;

(f) whether the board, before the profit and loss account and balance sheet were made out, took reasonable steps to ascertain what action had been taken in relation to the writing off of bad debts and the making of provisions for doubtful debts, and to cause all known bad debts to be written off and adequate provision to be made for doubtful debts;

(g) whether, at the date of the report, the board is aware of any circumstances that would render the amount written off for bad debts or the amount of the provision for doubtful debts inadequate to any substantial extent and, if so, giving particulars of the circumstances;

(h) whether the board, before the profit and loss account and balance sheet were made out, took reasonable steps to ascertain whether any current assets, other than current assets to which paragraph (f) applies, were unlikely to realize in the ordinary course of business their value as shown in the accounting records of the bank and, if so, to cause –

(i) those assets to be written down to an amount that they might be expected so to realize; or

(ii) adequate provision to be made for the difference between the amount of the value as so shown and the amount that they might be expected so to realize;

(i) whether, at the date of the report, the board is aware of any circumstances that would render the values attributed to current assets in the accounts misleading and, if so, giving particulars of the circumstances;

(j) whether there exists at the date of the report –

(i) any charge on the assets of the bank that has arisen since the end of the financial year and secures the liabilities of any other person and, if so, giving particulars of the charge and, so far as practicable, of the amount secured; and

(ii) any contingent liability that has arisen since the end of the financial year and, if so, stating the general nature of the liability and, so far as practicable, the maximum amount, or an estimate of the maximum amount, for which the bank could become liable in respect of the liability;

(k) whether any contingent or other liability has become enforceable, or is likely to become enforceable, within the period of 12 months after the end of the financial year, being a liability that, in the opinion of the board, will or may substantially affect the ability of the bank to meet its obligations when they fall due and, if so, giving particulars of that liability;

(l) whether at the date of the report the board is aware of any circumstances not otherwise dealt with in the report or accounts that would render any amount stated in the accounts misleading and, if so, giving particulars of the circumstances;

(m) whether the results of the bank's operations during the financial year were, in the opinion of the board, substantially affected by any item, transaction, or event of a material and unusual nature and, if so, giving particulars of that item, transaction, or event and the amount or the effect of that item, transaction, or event if known or reasonably ascertainable; and

(n) whether there has arisen in the interval between the end of the financial year and the date of the report any item, transaction, or event of a material and unusual nature likely, in the opinion of the board, to affect substantially the results of the bank's operations for the next succeeding financial year and, if so, giving particulars of the item, transaction, or event.

(2)  The board of a trustee bank that, at the end of its last financial year, was a holding trustee bank shall, not less than 14 days before the annual general meeting of the bank, cause to be made out a report, made in accordance with a resolution of the board, and signed by not less than 2 members of the board, with respect to the profit or loss and the state of affairs of the group of companies of the holding trustee bank as at the end of that financial year of the holding trustee bank, stating –

(a) the names of the members of the board in office at the date of the report;

(b) the principal activities of the corporations in the group in the course of the financial year and any significant change in the nature of those activities during that period;

(c) the names of any subsidiaries acquired or disposed of during the financial year, the consideration for each such acquisition or disposal, and the amount in each case of the net tangible assets of the subsidiary acquired or disposed of and, in the case of a subsidiary not being a wholly-owned subsidiary, the extent of the bank's interest in the subsidiary;

(d) the amounts and particulars of any material transfers to or from reserves or provisions of a corporation in the group during the financial year;

(e) where, during the financial year, any corporation in the group has issued any shares or debentures – the purposes of the issue, the classes of shares or debentures issued, the number of shares of each class and the amount, term, and rate of debentures of each class, and the terms of issue of each class of the shares;

(f) the amount (if any) of dividends paid to or declared in favour of the bank by each of the subsidiaries since the end of the previous financial year and up to the date of the report;

(g) whether, so far as debts owing to the bank are concerned, the board, before the profit and loss account and balance sheet were made out, took reasonable steps to ascertain what action had been taken in relation to the writing off of bad debts and the making of provisions for doubtful debts, and to cause all known bad debts to be written off and adequate provision to be made for doubtful debts;

(h) whether, at the date of the report, the board is aware of any circumstances that would render the amount written off for bad debts, or the amount of the provision for doubtful debts, in the group of companies inadequate to any substantial extent and, if so, giving particulars of the circumstances;

(i) whether the board, before the profit and loss account and balance sheet were made out, took reasonable steps to ascertain whether any current assets of the bank, other than current assets to which paragraph (g) applies, were unlikely to realize in the ordinary course of business their value as shown in the accounting records of the bank and, if so, to cause –

(i) those assets to be written down to an amount they might be expected so to realize; or

(ii) adequate provision to be made for the difference between the amount of the value as so shown and the amount that they might be expected so to realize;

(j) whether, at the date of the report, the board is aware of any circumstances that would render the values attributed to current assets in the group accounts misleading and, if so, giving particulars of the circumstances;

(k) whether there exists at the date of the report –

(i) any charge on the assets of any corporation in the group that has arisen since the end of the financial year and secures the liabilities of any other person and, if so, giving particulars of any such charge and, so far as practicable, of the amount secured; and

(ii) any contingent liability of any corporation in the group that has arisen since the end of that financial year and, if so, stating the general nature of the liability and, so far as practicable, the maximum amount, or an estimate of the maximum amount, for which the corporation could become liable in respect of the liability;

(l) whether any contingent or other liability of any corporation in the group has become enforceable, or is likely to become enforceable, within the period of 12 months after the end of the financial year, being a liability that, in the opinion of the board, will or may substantially affect the ability of the corporation to meet its obligations as and when they fall due and, if so, giving particulars of that liability;

(m) whether, at the date of the report, the board is aware of any circumstances, not otherwise dealt with in the report or group accounts, that would render any amount stated in the group accounts misleading and, if so, giving particulars of the circumstances;

(n) whether the results of the operations of the group or of a corporation in the group during the financial year were, in the opinion of the board, substantially affected by any item, transaction, or event of a material and unusual nature and, if so, giving particulars of that item, transaction, or event and the amount or the effect of that item, transaction, or event, if known or reasonably ascertainable; and

(o) whether there has arisen in the interval between the end of the financial year and the date of the report any item, transaction, or event of a material and unusual nature likely, in the opinion of the board, to affect substantially the results of the operations of any corporation in the group for the next succeeding financial year and, if so, giving particulars of the item, transaction, or event.

(3)  In subsections (1) and (2) , the expression any item, transaction, or event of a material and unusual nature includes but is not limited to –

(a) any change in accounting principles adopted since the last report;

(b) any material item appearing in the accounts or group accounts for the first time or not usually included in the accounts or group accounts; and

(c) any absence from the accounts or group accounts of any material item usually included in the accounts or group accounts.

(4)  The board shall state in the report whether, since the end of the previous financial year, a member of the board has received or become entitled to receive a benefit by reason of a contract made by the bank or a related corporation with the member of the board or with a firm of which he is a member, or with a company in which he has a substantial financial interest, and, if so, the general nature of the benefit.

(5)  Where there is attached to or included with a report of the board laid before the general council at the annual general meeting of the trustee bank or sent to the members of the general council in accordance with section 31 , a statement, report, or other document relating to the affairs of the bank or any of its subsidiaries, not being a statement, report, or document required by this Act to be laid before the general council in general meeting, the statement, report, or other document shall be deemed to be part of that first-mentioned report.

30.   Group accounts not to be issued, &c., until receipt of subsidiaries' accounts, &c.

(1)  Subject to subsection (6) , the board of a holding trustee bank shall not cause to be made out the group accounts referred to in section 28 (2) or make the report referred to in section 29 (2) unless the board has received from each subsidiary its accounts, the statements required under section 269 of the Companies (Tasmania) Code , and the directors' report in accordance with section 270 of that Code .

(2)  The board of a holding trustee bank shall take all reasonable steps to ensure that, when it makes a report under section 29 , it will have available to it a report that –

(a) has been made by the directors of each subsidiary and, if necessary, revised or added to by the directors of the subsidiary; and

(b) represents the state of affairs of the subsidiary not more than one month earlier than the date on which the report of the board of the holding trustee bank is made.

(3)  Where a subsidiary of a holding trustee bank is incorporated outside this State, it is sufficient compliance with this section if the board of the holding trustee bank receives from the subsidiary accounts and reports corresponding with those required under this section and in accordance with the law of the place of incorporation of the subsidiary.

(4)  The directors of a subsidiary shall, at the request of the board of the holding trustee bank, supply all such information as is required for the preparation of group accounts of the holding trustee bank and its subsidiaries, and of the report of the board of the holding trustee bank.

(5)  The board of a holding trustee bank is, unless it knows or has reason to suspect that any matter in any accounts, report, or information furnished by the directors of a subsidiary is false or misleading, entitled to rely on the accounts, report, or information for the purpose of the preparation of the group accounts and its report so far as they relate to the affairs of the subsidiary.

(6)  Where the board of a holding trustee bank, having taken all such steps as are reasonably available to it, is unable to obtain from the directors of a subsidiary any accounts, report, or other information required for the preparation of the group accounts and the board's report of the group, it may cause to be made out the group accounts and make the board's report without incorporating in, or including with, those group accounts, or incorporating in, or including with, that board's report, the first-mentioned accounts, report, or other information relating to the subsidiary but with such qualifications and explanations as are necessary to prevent the group accounts and report from being misleading.

(7)  Where the board of a holding trustee bank has caused to be made out the group accounts and has made the board's report in accordance with subsection (6) , it shall send to the members of the general council of the holding trustee bank, within one month after receiving the accounts, report, or other information from the directors of the subsidiary, a copy of the accounts and report or a statement embodying the other information, as the case may be, together with a statement by the board of the holding trustee bank containing such qualifications and explanations of the group accounts and of their report as are necessaryhaving regard to the accounts, report, or information received from the subsidiary.

31.   Copies for general council

The board shall, at least 7 days before the annual general meeting, cause copies of all accounts, reports, statements, and other documents that are to be laid before the annual general meeting and shall cause a copy of the auditor's report referred to in section 38 to be sent to all members of the general council.

32.   Accounts and reports to be laid before annual general meeting

The board shall cause to be laid before each annual general meeting of the trustee bank –

(a) a copy of the profit and loss account made out in accordance with section 28 (1) for the last financial year of the bank;

(b) a copy of the balance sheet made out in accordance with section 28 (1) as at the end of the last financial year of the bank;

(c) in the case of a trustee bank that, at the end of its last financial year before the relevant annual general meeting, was not a holding trustee bank – a copy of the board's report made out in accordance with section 29 (1) in respect of that financial year;

(d) in the case of a trustee bank that, at the end of its last financial year before the relevant annual general meeting, was a holding trustee bank – a copy of the group accounts made out in accordance with section 28 (2) in relation to that financial year and a copy of the board's report made out in accordance with section 29 (2) in respect of the profit or loss and the state of affairs of the group of companies of the holding trustee bank as at the end of that financial year;

(e) a copy of any auditor's report required by section 28 (4) to be attached to the accounts or group accounts of the bank; and

(f) a copy of the statement by the board required by section 28 (7) or (8) to be attached to the accounts or group accounts of the bank.

33.   Publication of accounts

The board shall, within one month after the annual general meeting, cause a copy of the documents laid before that meeting under section 32 (a) and (b) to be lodged with the Commissioner.

34.   Interim accounts

(1)  At least once between annual general meetings, the board shall send to each member of the general council copies of the latest accounts prepared for the board's use and such report on those accounts as it thinks fit.

(2)  If at least 5 members of the general council require the board, in writing, to call a general meeting to consider the accounts referred to in subsection (1) , the board shall call a general meeting for that purpose to take place not more than 14 days after receiving the requisition.

Division 3 - Audit

35.   Qualifications of auditors

(1)  Subject to this section, a person shall not –

(a) consent to be appointed as auditor of a trustee bank; or

(b) act as auditor of a trustee bank –

if –

(c) the person is not a registered company auditor;

(d) the person, or a corporation in which the person is a substantial shareholder for the purposes of Division 4 of Part IV of the Companies (Tasmania) Code , or the provisions of the law in force in a participating State or in a participating Territory, as defined by the Companies and Securities (Interpretation and Miscellaneous Provisions) (Tasmania) Code , that correspond with that Division, is indebted in an amount exceeding $5 000 to the trustee bank or to a related corporation; or

(e) the person –

(i) is an officer or employee of the trustee bank;

(ii) is a member of the general council;

(iii) is a partner, employer, or employee of an officer or employee of the trustee bank or a member of the general council; or

(iv) is a partner or employee of an employee of an officer or employee of the trustee bank or a member of the general council.

(2)  Subject to this section, a firm shall not –

(a) consent to be appointed as auditor of a trustee bank; or

(b) act as auditor of a trustee bank –

unless –

(c) at least one member of the firm is a registered company auditor who is ordinarily resident in this State;

(d) no member of the firm, and no corporation in which any member of the firm is a substantial shareholder within the meaning of Division 4 of Part IV of the Companies (Tasmania) Code , or the provisions of the law in force in a participating State or in a participating Territory, as defined by the Companies and Securities (Interpretation and Miscellaneous Provisions) (Tasmania) Code , that correspond with that Division, is indebted in an amount exceeding $5 000 to the trustee bank or to a related corporation;

(e) no member of the firm is –

(i) an officer or employee of the trustee bank;

(ii) a member of the general council;

(iii) a partner, employer, or employee of an officer or employee of the trustee bank or a member of the general council; or

(iv) a partner or employee of an employee of an officer or employee of the trustee bank or a member of the general council; or

(f) no officer or employee of the trustee bank or member of the general council receives any remuneration from the firm for acting as a consultant to it on accounting or auditing matters.

(3)  A reference in subsection (1) or (2) to indebtedness to a trustee bank or related corporation does not, in relation to indebtedness of a natural person, include a reference to indebtedness of that person to a trustee bank or related corporation that is a prescribed corporation for the purposes of Division 4 of Part VI of the Companies (Tasmania) Code where –

(a) the indebtedness arose as a result of a loan made to that person by the bank or related corporation in the ordinary course of its ordinary business; and

(b) the amount of that loan was used by that person to pay the whole or part of the purchase price of premises that are used by that person as his principal place of residence.

(4)  For the purposes of subsections (1) and (2) , a person shall be deemed to be an officer or employee of a trustee bank if –

(a) he is an officer or employee of a related corporation; or

(b) except where the Commissioner, if he thinks fit in the circumstances of the case, directs that this paragraph shall not apply in relation to him – he has, at any time within the immediately preceding period of 12 months, been an officer or employee of the bank or an officer, employee, or promoter of a related corporation.

(5)  For the purposes of this section, a person shall not be taken to be an officer or employee of a trustee bank by reason only of his being or having been the liquidator of a related corporation of the bank.

(6)  For the purposes of this section, a person shall not be taken to be an officer or employee of a trustee bank by reason only of his having been appointed as auditor of that bank or of a related corporation or, for any purpose relating to taxation, a public officer of a trustee bank or related corporation or by reason only of his being or having been authorized to accept on behalf of the bank or a related corporation service of process or any notices required to be served on the bank or related corporation.

(7)  The appointment of a firm as auditor of a trustee bank shall be deemed to be an appointment of all persons who are members of the firm and are registered company auditors, whether resident in this State or not, at the date of the appointment.

(8)  Where a firm that has been appointed as auditor of a trustee bank is reconstituted by reason of the death, retirement, or withdrawal of a member or members or by reason of the admission of a new member or new members, or both –

(a) a person who was deemed under subsection (7) to be an auditor of the trustee bank and who has so retired or withdrawn from the firm as previously constituted shall be deemed to have resigned as auditor of the bank as from the day of his retirement or withdrawal but, unless that person was the only member of the firm who was a registered company auditor and, after the retirement or withdrawal of that person, there is no member of the firm who is a registered company auditor, section 39 does not apply to that resignation;

(b) a person who is a registered company auditor and who is so admitted to the firm shall be deemed to have been appointed as an auditor of the bank as from the date of his admission; and

(c) the reconstitution of the firm does not affect the appointment of the continuing members of the firm who are registered company auditors as auditors of the bank –

but nothing in this subsection affects the operation of subsection (2) .

(9)  Except as provided by subsection (8) , the appointment of the members of a firm as auditors of a trustee bank that is deemed by subsection (7) to have been made by reason of the appointment of the firm as auditor of the bank is not affected by the dissolution of the firm.

(10)  A report or notice that purports to be made or given by a firm appointed as auditor of a trustee bank shall not be taken to be duly made or given unless it is signed in the firm name and in his own name by a member of the firm who is a registered company auditor.

(11)  [Section 35 Subsection (11) amended by No. 43 of 1991, s. 5 and Sched. 1 ]If, in contravention of this section, a person or a firm consents to be appointed, or acts as, auditor of a trustee bank, that person or each member of the firm, as the case may be, is guilty of an offence.

Penalty:  Fine not exceeding 5 penalty units.

(12)  [Section 35 Subsection (12) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A person shall not –

(a) if he has been appointed auditor of a trustee bank – knowingly disqualify himself while the appointment continues from acting as auditor of the bank; or

(b) if he is a member of a firm that has been appointed auditor of a trustee bank – knowingly disqualify the firm while the appointment continues from acting as auditor of the bank.

Penalty:  Fine not exceeding 5 penalty units.

36.   Appointment of auditors

(1)  A person or firm appointed as auditor under section 13 (4) or (6) or made so by section 7 (1) or 49 (1) or clause 2 of Schedule 1 holds office until death or removal or resignation from office in accordance with section 39 or until ceasing to be capable of acting as auditor by reason of section 35 (1) or (2) .

(2)  Within one month after a vacancy, other than a vacancy caused by the removal of an auditor from office, occurs in the office of auditor of the trustee bank, if there is no surviving or continuing auditor of the bank, the board shall, unless the general council at a general meeting has appointed a person or persons, a firm or firms, or a person or persons and a firm or firms, to fill the vacancy, appoint a person or persons, a firm or firms, or a person or persons and a firm or firms, to fill the vacancy.

(3)  While a vacancy in the office of auditor continues, the surviving or continuing auditor or auditors (if any) may act.

(4)  The general council or the board shall not appoint a person or firm as auditor of the trustee bank unless that person or firm has, before the appointment, consented by notice in writing given to the bank or to the board to act as auditor and has not withdrawn his or its consent by notice in writing given to the bank or to the board.

(5)  A notice under subsection (4) given by a firm shall be signed in the firm name and in his own name by a member of the firm who is a registered company auditor.

(6)  If the general council or the board appoints a person or firm as auditor of the bank in contravention of subsection (4) , the purported appointment does not have any effect and the bank and any member of the board who is in default are each guilty of an offence.

(7)  If after the removal from office of an auditor of a trustee bank the general council fails to appoint another auditor under section 13 (4) , the bank shall, within 7 days after the failure, notify the Commissioner accordingly, whereupon the Commissioner shall, unless there is another auditor of the bank whom the Commissioner believes to be able to carry out the responsibilities of auditor alone and who agrees to continue as auditor, appoint as auditor or auditors of the bank a person or persons, a firm or firms, or a person or persons and a firm or firms, who or which consents or consent to be so appointed.

(8)  Subject to subsection (7) , if a general council or the board does not appoint an auditor when required by this Act to do so, the Commissioner may, on the application in writing of a member of the general council, appoint as auditor or auditors of the trustee bank a person or persons, a firm or firms, or a person or persons and a firm or firms, who or which consents or consent to be so appointed.

(9)  A person or firm appointed as auditor of a trustee bank under subsection (2) , (7) , or (8) holds office, subject to this Act, until the next annual general meeting of the bank.

(10)  An auditor of a corporation that becomes a subsidiary of a trustee bank shall, unless he sooner vacates his office, retire at the annual general meeting of that subsidiary next held after it becomes such a subsidiary but, subject to this Division, is eligible for re-appointment.

(11)  [Section 36 Subsection (11) amended by No. 43 of 1991, s. 5 and Sched. 1 ]If a member of a board fails to take all reasonable steps to comply with, or to secure compliance with, subsection (2) , he is guilty of an offence.

Penalty:  Fine not exceeding 5 penalty units.

37.   Fees and expenses of auditors

The reasonable fees and expenses of an auditor of a trustee bank are payable by the bank.

38.   Powers and duties of auditors as to reports on accounts

(1)  An auditor of a trustee bank shall report to the members on the accounts required to be laid before the general council at the annual general meeting and on the bank's accounting records and other records relating to those accounts and, if it is a holding trustee bank for which group accounts are required, shall also report to the general council on the group accounts.

(2)  A report by an auditor of a trustee bank under subsection (1) shall be furnished by the auditor to the board in sufficient time to enable the board to comply with the requirements of section 31 in relation to that report.

(3)  An auditor shall, in a report under this section, state –

(a) whether the accounts and, if the trustee bank is a holding trustee bank for which group accounts are required, the group accounts are in his opinion properly drawn up –

(i) so as to give a true and fair view of the matters required by section 28 to be dealt with in the accounts and, if there are group accounts, in the group accounts; and

(ii) in accordance with the provisions of this Act;

(b) whether the accounting records and other records required by this Act to be kept by the trustee bank and, if it is a holding trustee bank, by the subsidiaries other than those of which he has not acted as auditor have been, in his opinion, properly kept in accordance with the provisions of this Act and the Companies (Tasmania) Code or, in the case of a subsidiary incorporated in another State or in a Territory, in accordance with the provisions of the corresponding law in force in that State or Territory;

(c) in the case of group accounts –

(i) the names of the subsidiaries (if any) of which he has not acted as auditor;

(ii) whether he has examined the accounts and auditors' reports of all subsidiaries of which he has not acted as auditor, being accounts that are included (whether separately or consolidated with other accounts) in the group accounts;

(iii) whether he is satisfied that the accounts of the subsidiaries that are to be consolidated with other accounts are in form and content appropriate and proper for the purposes of the preparation of the consolidated accounts and whether he has received satisfactory information and explanations as required by him for that purpose; and

(iv) whether the auditor's report on the accounts of any subsidiary was made subject to any qualification, or included any comment made under subsection (4) , and, if so, particulars of the qualification or comment;

(d) any defect or irregularity in the accounts or group accounts and any matter not set out in the accounts or group accounts without regard to which a true and fair view of the matters dealt with by the accounts or group accounts would not be obtained; and

(e) if he is not satisfied as to any matter referred to in paragraph (a) , (b) , or (c) , his reasons for not being so satisfied.

(4)  It is the duty of an auditor of a trustee bank to form an opinion as to –

(a) whether he has obtained all the information and explanations that he required;

(b) whether proper accounting records and other records have been kept by the bank as required by this Act;

(c) where the bank is a holding trustee bank – whether the procedures and methods used by the bank and by each of its subsidiaries in arriving at the amounts taken into any consolidated accounts were appropriate to the circumstances of the consolidation; and

(d) where group accounts are prepared otherwise than as one set of consolidated accounts for the group – whether he agrees with the reasons for preparing them in the form in which they are prepared as given by the board in the accounts –

and he shall state in his report particulars of any deficiency, failure, or shortcoming in respect of any matter referred to in this subsection.

(5)  An auditor of a trustee bank has a right of access at all reasonable times to the accounting records and other records of the bank, and is entitled to require from any member of the board or any officer or employee of the bank such information and explanations as he desires for the purposes of audit.

(6)  An auditor of a holding trustee bank has a right of access at all reasonable times to the accounting records and other records of any subsidiary and is entitled to require from any director, officer, employee, or auditor of any subsidiary, at the expense of the holding trustee bank, such information and explanations in relation to the affairs of the subsidiary as he requires for the purpose of reporting on the group accounts.

(7)  The auditor's report shall be attached to or endorsed on the accounts or group accounts and shall, if a member of the general council so requires, be read before the general council at the annual general meeting, and is open to inspection by a member of the general council at any reasonable time.

(8)  An auditor of a trustee bank or his agent authorized by him in writing for the purpose is entitled to attend any general meeting and to receive all notices of, and other communications relating to, any general meeting that a member of the general council is entitled to receive, and to be heard at any general meeting that he attends on any part of the business of the meeting that concerns the auditor in his capacity as auditor, and is entitled so to be heard notwithstanding that he retires at that meeting or a resolution to remove him from office is passed at that meeting.

(9)  If an auditor of a trustee bank becomes aware that the bank or the board has made default in complying with section 13 or the provisions of section 32 relating to the laying of accounts or group accounts before the annual general meeting, the auditor shall immediately inform the Commissioner by notice in writing and, if accounts or group accounts have been prepared and audited, send to the Commissioner a copy of the accounts or group accounts and of his report on the accounts or group accounts.

(10)  Except in a case to which subsection (9) applies, if an auditor, in the course of the performance of his duties as auditor of a trustee bank, is satisfied that –

(a) there has been a contravention of, or failure to comply with, any of the provisions of this Act or the Banking Act ; and

(b) the circumstances are such that in his opinion the matter has not been or will not be adequately dealt with by comment in his report on the accounts or group accounts or by bringing the matter to the notice of the board –

he shall forthwith report the matter to the Commissioner by notice in writing.

39.   Removal or resignation of auditor

(1)  Where the board causes a special general meeting to be held under subsection (5) of section 13 and the business to be dealt with at the meeting includes the removal of an auditor, the board shall serve a copy of the notice referred to in that subsection on the auditor and lodge a copy of such a notice with the Commissioner at least 14 days before the date of the meeting specified in that notice.

(2)  Within 7 days after receiving a copy of the notice referred to in section 13 (5) , the auditor may make representations in writing to the trustee bank and request that, before the special general meeting referred to in subsection (1) is held, a copy of the representations be sent by the bank at its expense to every member of the general council.

(3)  Unless the Commissioner on the application of the board otherwise orders, the board shall send a copy of the representations in accordance with the auditor's request, and the auditor may, without prejudice to his right to be heard orally or, where a firm is the auditor, to have a member of the firm heard orally on its behalf, require that the representations be read out at the meeting.

(4)  Upon the removal from office under section 13 (6) of an auditor of a trustee bank, the bank shall forthwith lodge with the Commissioner notice in writing of the removal.

(5)  An auditor of a trustee bank may, by notice in writing served on the bank, resign as auditor of the bank if –

(a) he has, by notice in writing given to the Commissioner, applied for consent to his resignation and stated the reasons for his application and, at or about the same time as he gave the notice to the Commissioner, notified the bank in writing of his application to the Commissioner; and

(b) he has received the consent of the Commissioner.

(6)  The Commissioner shall, as soon as practicable after receiving a notice from an auditor under subsection (5) , notify the auditor and the trustee bank whether he consents to the resignation of the auditor.

(7)  A statement made by an auditor in an application to the Commissioner under subsection (5) or in answer to an inquiry by the Commissioner relating to the reasons for the application –

(a) is not admissible in evidence in any civil or criminal proceedings against the auditor; and

(b) may not be made the ground of a prosecution, action, or suit against the auditor –

and a certificate by the Commissioner that the statement was made in the application or in the answer to the inquiry by the Commissioner is conclusive evidence that the statement was so made.

(8)  Subject to any order of a judge under section 64 , the resignation of an auditor takes effect –

(a) on the date (if any) specified for the purpose in the notice of resignation;

(b) on the date on which the Commissioner gives his consent to the resignation; or

(c) on the date (if any) fixed by the Commissioner for the purpose –

whichever last occurs.

(9)  Where on the retirement or withdrawal from a firm of a member the firm will no longer be capable, by reason of the provisions of section 35 (2) , of acting as auditor of a trustee bank, the member so retiring or withdrawing shall (if not disqualified from acting as auditor of the bank) be deemed to be the auditor of the bank until he obtains the consent of the Commissioner to his retirement or withdrawal.

(10)  Within 14 days after the receipt of a notice of resignation from an auditor of a trustee bank or, where an auditor of a trustee bank is removed from office under section 13 (6) , within 14 days after the removal, the bank shall lodge a notice of the resignation or removal in the prescribed form with the Commissioner.

Division 4 - Returns, registration, &c.

40.   Returns

(1)  Whenever there is a change in the membership of the board or the general council, the trustee bank shall lodge the prescribed particulars of that change with the Commissioner.

(2)  Whenever a principal officer of a trustee bank is appointed or ceases to be a principal officer, the bank shall lodge the prescribed particulars of the appointment or cessation with the Commissioner.

(3)  Where a trustee bank is required to lodge particulars with the Commissioner under this section, it shall do so –

(a) in the case of a change in the membership of the board or general council, within 7 days after that change;

(b) in the case of the appointment of a principal officer, within 7 days after the appointment; or

(c) in the case of a principal officer ceasing to be a principal officer, within 7 days after the cessation.

41.   Registers

The Commissioner shall keep in his office, in addition to the Register of Trustee Banks, registers of the directors and members of the general council, registers of trustee banks' rules, registers of principal officers, and such other registers as he considers necessary for the purposes of this Act.

42.   Inspection, &c.

Any person may, upon payment of the prescribed fee –

(a) inspect the Register of Trustee Banks or any register kept under section 41 and take copies of or from that Register or those registers; and

(b) obtain an extract from that Register or any of those registers certified by the Commissioner to be a true copy of part of that Register or those registers.

PART VIII - Amalgamation

43.   Interpretation of Part VIII

In this Part, unless the contrary intention appears, trustee bank after amalgamation means –

(a) a trustee bank created by an amalgamation in accordance with the principle referred to in section 45 (3) (a) ; or

(b) a trustee bank that continued in existence in an amalgamation in accordance with the principle referred to in section 45 (3) (b) .

44.   Preparation for amalgamation

Subject to the Banking Act , where 2 or more trustee banks propose to amalgamate they shall –

(a) draw up a draft agreement to do so; and

(b) draw up a draft scheme of amalgamation which complies with section 45 .

45.   Scheme of amalgamation

(1)  Subject to this section, a scheme of amalgamation shall specify –

(a) the name;

(b) the initial members of the general council, directors, principal officers, and auditors; and

(c) the rules –

of the trustee bank after the amalgamation.

(2)  A scheme of amalgamation may –

(a) specify substitute directors and principal officers to replace any directors and principal officers who are not available for any reason when the amalgamation takes effect;

(b) allow an excess of members of the general council of the trustee bank after amalgamation, not exceeding the full number of members of the general councils of the trustee banks involved in the amalgamation, either for such period as is specified in the order-in-council referred to in section 48 (3) or until the excess is ended by the non-replacement of members who cease to be members; and

(c) provide for such other matters as the trustee banks proposing to amalgamate consider necessary.

(3)  A scheme of amalgamation may be based on –

(a) the principle that all the trustee banks involved in the amalgamation cease to exist and a new trustee bank is created by that amalgamation;

(b) the principle that one of the trustee banks involved in the amalgamation continues in existence and takes over the business of all other banks involved in the amalgamation which cease to exist in the amalgamation; or

(c) some other principle approved by the Governor.

46.   Approval of proposed name and rules

(1)  When a draft agreement and a draft scheme of amalgamation have been drawn up pursuant to section 44 , the trustee banks proposing to amalgamate shall cause to be lodged with the Commissioner a copy of the draft agreement and draft scheme of amalgamation.

(2)  Upon receipt of a copy of the draft agreement and draft scheme of amalgamation lodged with him under subsection (1) , the Commissioner may, by notice in writing served on the trustee banks proposing to amalgamate –

(a) approve or reject the proposed name of the proposed trustee bank after amalgamation specified in the draft scheme; and

(b) approve the proposed rules of the proposed bank after amalgamation specified in the draft scheme or, where he is of the opinion that those proposed rules do not comply with this Act, require those proposed rules to be amended in the manner specified in the notice.

47.   Agreement to amalgamate

(1)  Where –

(a) the proposed name of the proposed trustee bank after amalgamation has been approved by the Commissioner under section 46 (2) (a) ; and

(b) the proposed rules of that proposed bank have been approved by the Commissioner, or amended as required by the Commissioner, under section 46 (2) (b) –

the boards of the trustee banks proposing to amalgamate shall submit the draft agreement and the draft scheme of amalgamation to a general meeting of the general council of each of those banks.

(2)  If the general council of each trustee bank proposing to amalgamate approves the draft agreement and draft scheme of amalgamation submitted to it under subsection (1) by the votes of at least three-quarters of the members present and voting, the trustee banks proposing to amalgamate shall execute an agreement in accordance with the draft agreement so approved to which is annexed a scheme of amalgamation in accordance with the draft scheme of amalgamation so approved.

(3)  The draft agreement and draft scheme of amalgamation shall not be submitted to or approved by a general meeting of a general council of a trustee bank proposing to amalgamate unless the proposed name of the proposed trustee bank after amalgamation specified in that draft scheme has been approved by the Commissioner under section 46 (2) (a) and the proposed rules of that proposed bank specified in that draft scheme have been approved by the Commissioner, or amended as required by the Commissioner, under section 46 (2) (b) .

48.   Approval of amalgamation

(1)  On the execution of an agreement under section 47 , the trustee banks which are parties to the agreement shall lodge with the Commissioner –

(a) a copy of the agreement with the scheme of amalgamation annexed; and

(b) a petition to the Governor to approve the agreement.

(2)  If the Commissioner is satisfied that the requirements of this Act have been complied with in respect of the agreement and scheme of amalgamation, he shall so certify and transmit the petition with his certificate to the Governor, but if he is not so satisfied, he shall, by notice in writing served on the trustee banks which are parties to the agreement, refuse to certify that the requirements of this Act have been complied with in respect of the agreement and scheme of amalgamation.

(3)  The Governor may, by order-in-council, approve the agreement and the approval shall take effect on the notification of the making of the order-in-council in the Gazette.

49.   Effect of amalgamation

(1)  When the Governor's approval under section 48 (3) takes effect –

(a) if one trustee bank involved in the amalgamation continues in existence and all other trustee banks involved in the amalgamation cease to exist –

(i) all the rights of the trustee banks involved in the amalgamation which ceased to exist vest in the trustee bank which continued in existence and against the bank which continued in existence may be enforced all duties and obligations of those other banks as if they were originally its duties and obligations;

(ii) all the property of the trustee banks involved in the amalgamation which ceased to exist vests in the trustee bank which continued in existence and that bank may deal with that property in the same way as a trustee bank which ceased to exist in the amalgamation could have done if it had not ceased to exist and there had been no agreement to amalgamate;

(iii) the identity of the trustee bank which continued in existence, and its continuity as a trustee bank, is not prejudiced or affected; and

(iv) the property, and the rights and obligations, of the trustee bank which continued in existence are not affected;

(b) if a new trustee bank has been created by the amalgamation and all the trustee banks involved in the amalgamation cease to exist, the trustee bank created by the amalgamation shall be deemed to be the continuation in all respects of all the trustee banks involved in the amalgamation and –

(i) in it shall vest all the rights of those banks and against it may be enforced all duties and obligations of those banks as if they were originally its duties and obligations; and

(ii) in it shall vest all the property of the trustee banks involved in the amalgamation and it may deal with that property in the same way as atrustee bank which ceased to exist in the amalgamation could have done if it had not ceased to exist and there had been no agreement to amalgamate;

(c) the directors and members of the general council, the principal officers, and the auditors specified in the scheme of amalgamation shall become the directors and members of the general council, the principal officers, and the auditors, respectively, of the trustee bank after amalgamation;

(d) the proposed rules specified in the scheme of amalgamation and approved by the Commissioner shall become the rules of the trustee bank after amalgamation; and

(e) any legal proceedings that could have been continued or commenced by or against a trustee bank involved in the amalgamation may be continued or commenced by or against the trustee bank after amalgamation.

(2)  As soon as practicable after the notification in the Gazette of the making of the order-in-council referred to in section 48 (3) , the Commissioner shall make such amendments to the Register of Trustee Banks and such other registers kept by him as are made necessary by the amalgamation.

50.   Special provisions applicable to land under the Land Titles Act 1980 and the Registration of Deeds Act 1935

(1)  When the Governor's approval under section 48 (3) takes effect, if a new trustee bank has been created by the amalgamation and all the trustee banks involved in the amalgamation cease to exist, the Recorder of Titles may register an instrument relating to a prescribed estate or interest executed by the trustee bank created by the amalgamation if the instrument is in a registrable form notwithstanding that the bank created by the amalgamation is not recorded as the registered proprietor of that prescribed estate or interest in the Register kept under the Land Titles Act 1980 .

(2)  When the Governor's approval under section 48 (3) takes effect, if one trustee bank involved in an amalgamation continues in existence and all other trustee banks involved in the amalgamation cease to exist, the Recorder of Titles may register an instrument relating to a prescribed estate or interest executed by the trustee bank which continued in existence if the instrument is in a registrable form notwithstanding that the bank which continued in existence is not recorded as the registered proprietor of that prescribed estate or interest in the Register kept under the Land Titles Act 1980 .

(3)  For the purposes of subsections (1) and (2) –

prescribed estate or interest means an estate or interest in land under the Land Titles Act 1980 , which estate or interest is registered in the name of a trustee bank which ceased to exist in an amalgamation.

(4)  When the Governor's approval under section 48 (3) takes effect –

(a) if a new trustee bank has been created by the amalgamation and all the trustee banks involved in the amalgamation cease to exist, the trustee bank created by the amalgamation shall; or

(b) if one trustee bank involved in an amalgamation continues in existence and all other trustee banks involved in the amalgamation cease to exist, the trustee bank which continued in existence in the amalgamation shall –

lodge with the Registrar of Deeds a copy of the order-in-council referred to in section 48 (3) within a period of 14 days from the notification of the making of that order-in-council in the Gazette and the Registrar of Deeds shall register the copy of that order-in-council as if it were an instrument within the meaning of the Registration of Deeds Act 1935 .

PART IX - Miscellaneous

Division 1 - Offences

51.   Offences relating to incurring of debts or fraudulent conduct

(1)  [Section 51 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]If –

(a) a trustee bank incurs a debt, whether within or outside this State; and

(b) immediately before the time when the debt is incurred –

(i) there are reasonable grounds to expect that the bank will not be able to pay all its debts as and when they become due; or

(ii) there are reasonable grounds to expect that, if the bank incurs the debt, it will not be able to pay all its debts as and when they become due –

any person who was a member of the board, or took part in the management of the bank, at the time when the debt was incurred is guilty of an offence and the bank and that person or, if there are 2 or more such persons, those persons are jointly and severally liable for the payment of the debt.

Penalty:  50 penalty units or imprisonment for a term not exceeding one year, or both.

(2)  In any proceedings against a person under subsection (1) , it is a defence if the defendant proves –

(a) that the debt was incurred without his express or implied authority or consent; or

(b) that at the time when the debt was incurred, he did not have reasonable cause to expect –

(i) that the trustee bank would not be able to pay all its debts as and when they became due; or

(ii) that, if the bank incurred that debt, it would not be able to pay all its debts as and when they became due.

(3)  Proceedings may be brought under subsection (1) for the recovery of a debt whether or not the person against whom the proceedings are brought, or any other person, has been convicted of an offence under subsection (1) in respect of the incurring of that debt.

(4)  Where subsection (1) renders a person or persons liable to pay a debt incurred by a trustee bank, the payment by that person or either or any of those persons of the whole or any part of that debt does not render the bank liable to the person concerned in respect of the amount so paid.

(5)  [Section 51 Subsection (5) amended by No. 43 of 1991, s. 5 and Sched. 1 ]If a trustee bank does any act (including the making of a contract or the entering into of a transaction) with intent to defraud creditors of the bank or of any other person or for any other fraudulent purpose, any person who was knowingly concerned in the doing of the act with that intent or for that purpose is guilty of an offence.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

(6)  A certificate issued by the proper officer of a court stating that a person specified in the certificate –

(a) was convicted of an offence under subsection (1) in relation to a debt specified in the certificate incurred by a trustee bank so specified; or

(b) was convicted of an offence under subsection (5) in relation to a trustee bank specified in the certificate –

is, in any proceedings, prima facie evidence of the matters stated in the certificate.

(7)  A document purporting to be a certificate issued under subsection (6) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly issued.

52.   Powers of Court

(1)  Where a person has been convicted of an offence under section 51 (1) in respect of the incurring of a debt, the Court, on the application of the Commissioner or the person to whom the debt is payable, may, if it thinks it proper to do so, declare that the first-mentioned person shall be personally responsible without any limitation of liability for the payment to the person to whom the debt is payable of an amount equal to the whole of the debt or such part of it as the Court thinks proper.

(2)  Where a person has been convicted of an offence under section 51 (5) , the Court, on the application of the Commissioner or of a person authorized by the Commissioner, may, if it thinks it proper to do so, declare that the first-mentioned person shall be personally responsible without any limitation of liability for the payment to the trustee bank of the amount required to satisfy so much of the debts of the bank as the Court thinks proper.

(3)  Where the Court makes a declaration under subsection (1) in relation to a person, it may give such further directions as it thinks proper for the purpose of giving effect to that declaration.

(4)  In particular, the Court may order that the liability of the person under the declaration shall be a charge –

(a) on a debt or obligation due from the trustee bank to him; or

(b) on a right or interest under a charge on any property of the trustee bank held by or vested in him or a person on his behalf, or a person claiming as assignee from or through the person liable or a person acting on his behalf.

(5)  The Court may, from time to time, make such further order as it thinks proper for the purpose of enforcing a charge imposed under subsection (4) .

(6)  For the purpose of subsection (4) –

assignee includes a person to whom or in whose favour, by the directions of the person liable, the debt, obligation, or charge was created, issued, or transferred or the interest created, but does not include an assignee for valuable consideration, not including consideration by way of marriage, given in good faith and without actual knowledge of any of the matters upon which the conviction or declaration was made.

(7)  On the hearing of an application under subsection (1) or (2) , the applicant may himself give evidence or call witnesses.

53.   Certain rights not affected

Except as provided by section 51 (4) , nothing in section 51 (1) or 52 (1) or (2) affects any rights of a person to indemnity, subrogation, or contribution.

54.   Falsification of books

(1)  [Section 54 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]An officer or employee or former officer or employee of a trustee bank, or a member or former member of a general council who conceals, destroys, mutilates, or falsifies any securities of or belonging to the bank or any books affecting or relating to affairs of the bank is guilty of an offence.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

(2)  [Section 54 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]Where matter that is used or intended to be used in connection with the keeping of any books affecting or relating to affairs of a trustee bank is recorded or stored in an illegible form by means of a mechanical device, an electronic device, or any other device, a person who –

(a) records or stores by means of that device matter that he knows to be false or misleading in a material particular;

(b) destroys, removes, or falsifies matter that is recorded or stored by means of that device, or has been prepared for the purpose of being recorded or stored, or for use in compiling or recovering other matter to be recorded or stored, by means of that device; or

(c) fails to record or store matter by means of that device with intent to falsify any entry made or intended to be compiled, wholly or in part, from that matter –

is guilty of an offence.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

(3)  It is a defence to a charge arising under subsection (1) or (2) if the defendant proves that he acted honestly and that in all the circumstances the act or omission constituting the offence should be excused.

55.   Frauds by members of board, officers, and employees

[Section 55 Amended by No. 43 of 1991, s. 5 and Sched. 1 ]A person who, while a member of the board or an officer or employee of a trustee bank –

(a) by false pretences or by means of any other fraud, induces a person to give credit to the bank or to a related corporation;

(b) with intent to defraud the bank or a related corporation or members of the general council or creditors of the bank or members or creditors of a related corporation, makes or purports to make, or causes to be made or to be purported to be made, any gift or transfer of or charge on, or causes or connives at the levying of any execution against, the property of the bank or related corporation; or

(c) with intent to defraud the bank or a related corporation or members of the general council or creditors of the bank or members or creditors of a related corporation, conceals or removes any part of the property of the bank or related corporation after, or within 2 months before, the date of any unsatisfied judgment or order for payment of money obtained against the bank or related corporation –

is guilty of an offence.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

56.   False or misleading statements

(1)  [Section 56 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A person who, in a document required by or for the purposes of this Act or lodged with, or given or submitted to, the Commissioner, makes or authorizes the making of a statement that to his knowledge is false or misleading in a material particular, or omits or authorizes the omission of any matter or thing without which the document is to his knowledge misleading in a material respect, is guilty of an offence.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

(2)  [Section 56 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A person who, in a document required by or for the purposes of this Act or lodged with, or given or submitted to, the Commissioner –

(a) makes or authorizes the making of a statement that is false or misleading in a material particular; or

(b) omits or authorizes the omission of any matter or thing without which the document is misleading in a material respect –

without having taken reasonable steps to ensure that the statement was not false or misleading or to ensure that the statement did not omit any matter or thing without which the document would be misleading, as the case may be, is guilty of an offence.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding one year, or both.

(3)  For the purposes of subsections (1) and (2) , where –

(a) at a meeting, a person votes in favour of a resolution approving, or otherwise approves, a document required by or for the purposes of this Act or required to be lodged with, or given or submitted to, the Commissioner; and

(b) the document contains a statement that, to the person's knowledge, is false or misleading in a material particular, or omits any matter or thing without which the document is, to the person's knowledge, misleading in a material respect –

the person shall be deemed to have authorized the making of the statement or the omission of the matter or thing.

57.   False reports

(1)  [Section 57 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A member of the board or an officer or employee of a trustee bank or a director or an officer or employee of a subsidiary of a holding trustee bank who makes or furnishes, or authorizes or permits the making or furnishing of, a statement or report relating to affairs of the bank or subsidiary, knowing the statement or report to be false or misleading in a material particular, to –

(a) a director or other member of the general council or an auditor of the bank; or

(b) in the case of a corporation that is a subsidiary of a holding trustee bank, an auditor of the bank –

is guilty of an offence.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

(2)  [Section 57 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A member of the board or an officer or employee of a trustee bank or a director or an officer or employee of a subsidiary of a holding trustee bank who makes or furnishes, or authorizes or permits the making or furnishing of, a statement or report relating to affairs of the bank or subsidiary that is false or misleading in a material particular to –

(a) a director or other member of the general council or an auditor of the bank; or

(b) in the case of a corporation that is a subsidiary of a holding trustee bank, an auditor of the bank –

without having taken reasonable steps to ensure that the statement or report was not false or misleading is guilty of an offence.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding one year, or both.

(3)  The references in subsections (1) and (2) to making or furnishing, or authorizing or permitting the making or furnishing of, a false or misleading statement or report relating to affairs of a trustee bank or a subsidiary of a holding trustee bank includes a reference to making or furnishing, or authorizing or permitting the making or furnishing of, a false or misleading statement or report as to the state of knowledge with respect to those affairs of the person making or furnishing, or authorizing or permitting the making or furnishing of, the statement or report.

(4)  Where a statement or report is made or furnished to a person referred to in subsection (1) (a) or (b) or (2) (a) or (b) in response to a question asked by that person, the question, and the statement or report, shall be considered together in determining whether the statement or report was false or misleading.

(5)  For the purposes of this section, holding trustee bank has the meaning assigned to that expression in section 25 .

58.   Certain offences relating to Part VII

(1)  [Section 58 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]If default is made in complying with a provision of section 26 (1) or (2) , the trustee bank, a member of the board who failed to take all reasonable steps to secure compliance by the bank with the provision, and any officer or employee of the bank who is in default is guilty of an offence.

Penalty:  Fine not exceeding 25 penalty units or imprisonment for a term not exceeding 6 months, or both.

(2)  In any proceedings against a person for failure to take all reasonable steps to secure compliance by the trustee bank with a provision mentioned in subsection (1) , it is a defence if the person proves that he had reasonable grounds to believe and did believe that a competent and reliable person was charged with the duty of seeing that the provision was complied with and was in a position to discharge that duty.

(3)  [Section 58 Subsection (3) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A member of the board or an officer or employee of a trustee bank or a director, officer, or employee of a subsidiary of a holding trustee bank who refuses or fails without lawful excuse to allow an auditor of the trustee bank or holding trustee bank access, in accordance with the provisions of this Act, to any accounting records and other records of the trustee bank or the subsidiary, as the case may be, in his custody or control, or to give any information or explanation as and when required under those provisions or otherwise hinders, obstructs, or delays an auditor in the performance of his duties or the exercise of his powers, is guilty of an offence.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

(4)  [Section 58 Subsection (4) amended by No. 43 of 1991, s. 5 and Sched. 1 ]An auditor of a subsidiary of a holding trustee bank who refuses or fails without lawful excuse to allow an auditor of the holding trustee bank access, in accordance with the provisions of this Act, to any accounting records and other records of the subsidiary in his custody or control, or to give any information or any explanation as and when required under those provisions, or otherwise hinders, obstructs, or delays an auditor in the performance of his duties or the exercise of his powers, is guilty of an offence.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

(5)  [Section 58 Subsection (5) amended by No. 43 of 1991, s. 5 and Sched. 1 ]If a member of a board of a trustee bank or a director of a subsidiary of a holding trustee bank fails to take all reasonable steps to comply with, or to secure compliance with, or has knowingly been the cause of any default under, any of the provisions of Division 2 of Part VII , other than section 26 , he is guilty of an offence.

Penalty:  

(a) in a case to which paragraph (b) does not apply, a fine not exceeding 50 penalty units; or

(b) if the offence was committed with intent to deceive or defraud depositors or creditors of the trustee bank or holding trustee bank or creditors of any other person or for any other fraudulent purpose – a fine not exceeding 200 penalty units or imprisonment for a term not exceeding 5 years, or both.

(6)  In any proceedings against a person for failure to take all reasonable steps to comply with, or to secure compliance with, the provisions of Division 2 of Part VII , relating to the form and content of the accounts of a trustee bank or group accounts of a holding trustee bank by reason of an omission from the accounts or group accounts, it is a defence to prove that the information omitted was immaterial and did not affect the giving of a true and fair view of the matters required by section 28 to be dealt with in the accounts or group accounts, as the case may be.

(7)  If, after the expiration of the period within which any accounts of a trustee bank or any report of the board is or are required by section 28 or 29 to be made out, the Commissioner, by notice in writing to each of the members of the board, requires the board to produce the accounts or report to a person specified in the notice on a date and at a place so specified, and the board fails to produce the accounts or report as required by the notice, then in any proceedings for a failure to comply with section 28 or 29 , proof of the failure to produce the accounts or report as required by the notice is prima facie evidence that the accounts or report were not made out within that period.

(8)  For the purposes of this section, holding trustee bank has the meaning assigned to that expression in section 25 .

59.   General penalty provisions

(1)  A person who –

(a) does an act or thing that he or it is forbidden to do by or under a provision of this Act;

(b) does not do an act or thing that he or it is required or directed to do by or under a provision of this Act; or

(c) otherwise contravenes or fails to comply with a provision of this Act –

is, unless that provision or another provision provides that he is guilty of an offence, guilty of an offence.

(2)  Where an offence under this Act has been committed by a trustee bank and the offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any member of the board or other member of the general council or other person concerned in the management of the bank, or any person who was purporting to act in any such capacity, he as well as the bank is guilty of the offence.

(3)  Where a board –

(a) does an act or thing that it is forbidden to do by or under a provision of this Act;

(b) does not do an act or thing that it is required or directed to do by or under a provision of this Act; or

(c) otherwise contravenes or fails to comply with a provision of this Act –

every member of the board, unless that provision or another provision provides they are each guilty of an offence, is guilty of an offence.

(4)  [Section 59 Subsection (4) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A person who is guilty of an offence against this Act is punishable, upon conviction, by a penalty not exceeding the penalty applicable to that offence, or, where no penalty is specified, by a penalty of a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

(5)  In proceedings for an offence under this Act, not being an offence for which a defence is provided elsewhere in this Act, it is a defence for the person charged to prove –

(a) that the commission of the offence was due to reliance on information provided to him by, or the act or default of, another person that he had reasonable grounds to believe and did believe was a competent and reliable person, or to some cause beyond his control; or

(b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

(6)  In proceedings for an offence under this Act, a person shall not, without the leave of the court, be entitled to rely on the defence that the commission of an offence was due to the act or default of another person or to reliance on information provided to him by another person unless, not less than 7 days before the hearing, he has served on the complainant a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.

Division 2 - General

60.   Power of certain trustees, &c., to deposit money

(1)  The trustee or treasurer, or the committee of management, or other governing authority, of a body to which this section applies may deposit in a trustee bank any part of the money of that body if the bank is willing to receive it.

(2)  Where a trustee bank repays a deposit or part of a deposit made under this section, the receipt of any one of the trustees or the treasurer for the time being of a body to which this section applies shall, in the absence of written instructions to the contrary from that body, be a good and sufficient discharge of the bank in relation to a deposit made under this section or any part of such a deposit.

(3)  [Section 60 Subsection (3) amended by No. 68 of 1994, s. 3 and Sched. 1 ]In this section, body to which this section applies means –

(a) a friendly society registered under the Friendly Societies Act 1888 or a branch of a society so registered;

(b) a trade union registered under the Trades Unions Act 1889 or a branch of a union so registered;

(c) an organization registered under the Industrial Relations Act 1988 of the Commonwealth or a branch of an organization so registered; and

(d) a society or association (whether incorporated or not) formed for any charitable purpose or for the purpose of benevolence, philanthropy, religion, instruction, or recreation that is not charitable, or for any kindred purpose, or a branch of such a society or association.

61.   Disputes with depositors, &c.

(1)  The Governor may, by instrument in writing, appoint a legal practitioner or barrister for the purpose of hearing disputes arising between trustee banks and their depositors or persons claiming under or on behalf of those depositors.

(2)  An instrument of appointment referred to in subsection (1) shall –

(a) specify the period for which the person specified in that instrument shall be appointed; and

(b) specify the maximum fee that person may charge for hearing a dispute referred to in that subsection.

(3)  If a dispute arises between a trustee bank and a depositor or a person claiming under or on behalf of a depositor, the dispute may be referred, in writing, to the legal practitioner or barrister appointed under subsection (1) .

(4)  On hearing a dispute referred to him under subsection (3) , the legal practitioner or barrister may –

(a) summon any person whose evidence appears to be material to the dispute;

(b) take evidence on oath or affirmation and, for that purpose, administer oaths and affirmations; and

(c) require the trustee bank or any other person to produce documents or records in its or his control that relate to matters which appear to the legal practitioner or barrister to be material to the dispute.

(5)  [Section 61 Subsection (5) amended by No. 43 of 1991, s. 5 and Sched. 1 ]Any person who neglects or fails, without reasonable excuse, to attend in obedience to a summons under subsection (4) (a) , to be sworn or make an affirmation, to answer relevant questions, or to produce any relevant documents or records when required to do so under subsection (4) (c) is guilty of an offence.

Penalty:  Fine not exceeding 5 penalty units.

(6)  A decision made by a legal practitioner or barrister concerning a dispute referred to him under subsection (3) –

(a) shall be binding and conclusive on all parties;

(b) shall be final and without appeal; and

(c) may provide for payment of a fee to the legal practitioner or barrister of an amount not exceeding that specified in his instrument of appointment and for that fee to be paid by one of the parties or by 2 or more of them in such proportion as he determines.

62.   Donations to charities

(1)  Notwithstanding anything contained elsewhere in this Act, a trustee bank may make gifts for or towards such charitable purposes as the board may determine.

(2)  The amount which may be given under this section by a bank in a financial year shall not exceed such amount as the Treasurer may, by order, declare.

(3)  An order made under subsection (2) is not a statutory rule for the purposes of the Rules Publication Act 1953 .

63.   Jurisdiction of the Court

(1)  The Court may exercise, in addition to the jurisdiction belonging to it by virtue of section 16 (1) , jurisdiction over and in respect of a trustee bank as if the bank were a trustee for the purposes of this Act.

64.   Appeals

(1)  A society aggrieved by –

(a) the refusal of the Commissioner to register under section 6 (3) (b) a bank proposed by it; or

(b) a requirement imposed on it by the Commissioner under section 6 (3) (c) –

may appeal to a judge in chambers.

(2)  A trustee bank aggrieved by –

(a) a rejection under section 23 (1) by the Commissioner of a name proposed by it;

(b) a requirement imposed on it by the Commissioner under section 15 (5) (b) or 46 (2) (b) ; or

(c) a refusal under section 48 (2) of the Commissioner to certify in respect of an agreement and a scheme of amalgamation in which the bank is involved –

may appeal to a judge in chambers.

(3)  A person aggrieved by the refusal of consent by the Commissioner to the resignation of an auditor of a trustee bank may, within one month after the date of the refusal, appeal to a judge in chambers.

(4)  At the hearing of an appeal under this section, the judge may –

(a) dismiss the appeal;

(b) quash the decision of the Commissioner and direct him to take such action as the judge considers necessary in the matter to which the appeal relates; and

(c) make such orders and give such directions as he considers appropriate.

65.   Certificate of registration

(1)  The Commissioner shall, on payment of the prescribed fee, issue to a trustee bank a certificate of its registration in the Register of Trustee Banks.

(2)  Where a trustee bank ceases to be registered, the person having control of the certificate issued under subsection (1) in relation to the bank shall forthwith deliver it to the Commissioner.

(3)  A certificate issued under subsection (1) shall be conclusive evidence of the registration and incorporation of the trustee bank named in the certificate.

(4)  An extract from a register certified by the Commissioner under section 42 shall be evidence of the matters contained in the extract.

66.   Service of documents, &c.

(1)  Where, under this Act, a document or a notice is required to be served on a person, the document or notice may be served –

(a) in the case of a person who is neither a body corporate nor a firm –

(i) by delivering it to him personally;

(ii) by leaving it at that person's place of residence last known to the person required to serve the document or notice with someone who apparently resides there, or at that person's place of business or employment last known to the person required to serve the document or notice with someone who is apparently employed there, being in either case a person who has or apparently has attained the age of 16 years; or

(iii) by sending it by post to that person's place of residence, business, or employment last known to the person required to serve the document or notice;

(b) in the case of a body corporate –

(i) by delivering it to the secretary of the body corporate personally;

(ii) by leaving it at the registered office of the body corporate or at the place or principal place of business of the body corporate in this State with a person apparently employed there, being a person who has or apparently has attained the age of 16 years; or

(iii) by sending it by post to the registered office of the body corporate or to the place or principal place of business of the body corporate; or

(c) in the case of a firm –

(i) by delivering it to a member of the firm personally;

(ii) by leaving it at the place or principal place of business of the firm in this State last known to the person required to serve the document or notice with a person apparently employed there, being a person who has or apparently has attained the age of 16 years; or

(iii) by sending it by post to the place or principal place of business of the firm in this State last known to the person required to serve the document or notice.

(2)  A reference in subsection (1) to the registered office of a body corporate includes a reference to a registered office that is outside this State.

(3)  The provisions of this section are in addition to theprovisions of section 528 of the Companies (Tasmania) Code .

67.   Fees

All fees prescribed under this Act shall be paid to the Commissioner.

68.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Without limiting subsection (1) , the Governor may make regulations for or in respect of the following matters:

(a) the issue of certificates by the Commissioner and the fees payable in respect of the issue of those certificates; and

(b) the fees payable in respect of applications made under this Act, the lodgment of notices and documents with the Commissioner under this Act, the inspection of the Register of Trustee Banks or any other registers kept by the Commissioner under this Act, and the taking of copies of or obtaining extracts from the Register of Trustee Banks or any other registers kept under this Act.

69.   Transitional provisions

(1)  For the purpose of bringing the constitutions of the banks named in section 9 into conformity with this Act, the provisions specified in Schedule 1 shall apply.

(2)  The remuneration of the directors determined by the general council at its annual general meeting in 1994 and approved by the Governor is payable to the directors while they remain in office from the date of the determination until that remuneration is varied by another determination of the general council and approved by the Governor.

(3)  The rules in force at the commencement of the Trustee Banks Amendment Act 1995 relating to the retirement and re-election of directors continue in force until the conclusion of the annual general meeting in 1996.

71.   Repeals

The Acts specified in Schedule 2 are repealed.

SCHEDULE 1 - Transitional provisions

Section 69

1.   On the day fixed under section 2 (2) , in relation to the banks named in section 9 –

(a) the members of the general committees shall become the members of the general councils;

(b) the general committees shall become the general councils;

(c) the members of the executive committees shall become the directors; and

(d) the executive committees shall become the boards –

respectively, so that all their business that was unfinished at that date may be continued under this Act and all their decisions then in force shall continue in force with all changes required by this Act.

2.   The auditors of the banks named in section 9 shall, on the day fixed under section 2 (2) , continue, subject to section 13 (6) (b) , as the auditors of the trustee banks until the first annual general meetings of those banks after that day.

3.   The existing rules, regulations, and by-laws of those banks shall continue in force under this Act with all changes required by this Act as the respective rules of those banks.

4.   The principal officers of the banks named in section 9 shall, on the day fixed under section 2 (2) , continue as the principal officers of the trustee banks until the first meetings of the boards of those banks after that day.

SCHEDULE 2 - Acts Repealed

Section 71