Trustee Companies (Merger) Act 2001

Trustee Companies (Merger) Act 2001

An Act to facilitate the merger of certain trustee companies and to provide for the amendment of the Trustee Companies Act 1953

Whereas –

(a) Perpetual Trustees Tasmania Limited (ACN 009 475 610) and Tasmanian Trustees Limited (ACN 009 475 629) are trustee companies within the meaning of the Trustee Companies Act 1953 and are subject to that Act; and

(b) the directors of those trustee companies have agreed to merge the companies under arrangements to be put to the members of each company for their approval; and

(c) if the members of Tasmanian Trustees Limited –

(i) approve of an implementation agreement made on 16 October 2001 between their directors and the directors of Perpetual Trustees Tasmania Limited; and

(ii) agree to change the name of Tasmanian Trustees Limited to Tasmanian Perpetual Trustees Limited –

the members of Perpetual Trustees Tasmania Limited will be asked to agree to the merger in the context of an arrangement under Part 5.1 of the Corporations Act providing for Tasmanian Perpetual Trustees Limited to acquire all of the shares in Perpetual Trustees Tasmania Limited and for the businesses of both trustee companies to be merged as a continuing business; and

(d) it is expedient to facilitate the merger of the trustee companies in accordance with the agreement:

Be it therefore 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:

1.   Short title

This Act may be cited as the Trustee Companies (Merger) Act 2001 .

2.   Commencement

This Act commences on the day on which this Act receives the Royal Assent.

3.   Interpretation

In this Act, unless the contrary intention appears –

arrangement means the arrangement for merger referred to in paragraph (c) of the Preamble to this Act;

common fund means a fund established and kept by one of the trustee companies under section 18C of the Trustee Companies Act 1953 and specified in Schedule 1 ;

managed investment scheme has the meaning given to that term in the Corporations Act;

merger date means the date on which an order of the Supreme Court under section 413 of the Corporations Act approving the arrangement for the merger takes effect;

merging company means Tasmanian Perpetual Trustees Limited (ACN 009 475 629);

property means –

(a) any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property; or

(b) money, documents and securities; or

(c) any other rights;

responsible entity has the meaning given to that term in the Corporations Act;

right includes any right, power, privilege and immunity whether actual, contingent or prospective;

trust estate includes all property committed to the administration or management of either of the trustee companies unless the property is subject to a managed investment scheme under the Corporations Act;

trustee companies means Perpetual Trustees Tasmania Limited (ACN 009 475 610) and Tasmanian Trustees Limited (ACN 009 475 629).

4.   Application of Trustee Companies Act 1953 to arrangement

Nothing in section 18F(1) of the Trustee Companies Act 1953 or Schedule 5 to that Act applies so as to prevent the arrangement from being carried into effect.

5.   Requirement for merger

Nothing in this Act is taken to authorise the proposed merger unless the arrangement is approved by the Supreme Court under the Corporations Act and carried into effect within 2 years after the commencement of this Act.

6.   Acquisition of capital

The merging company is entitled to acquire the whole of the issued capital of Perpetual Trustees Tasmania Limited.

7.   Change of responsible entity

After the merger date, Perpetual Trustees Tasmania Limited may call a meeting of the members in any of its common funds for the purpose of –

(a) retiring as responsible entity in that common fund and enabling members to vote on a resolution to choose the merging company as the new responsible entity of that common fund in accordance with Division 2 of Part 5C.2 of the Corporations Act; and

(b) enabling members to vote on a resolution to merge any common funds in accordance with section 8 .

8.   Merger of common funds

(1)  At any time after the merger date, the merging company may merge any of its common funds in accordance with this section.

(2)  The merger must be approved by at least 75% of the members in each common fund proposed to be merged voting personally or by proxy at separate meetings.

(3)  The members in each of the common funds proposed to be merged must be given at least 21 days’ notice in writing of a meeting to vote on a resolution to merge the common funds.

(4)  The notice is to be accompanied by an explanatory statement setting out the nature, purpose and effect of the proposed merger.

(5)  The explanatory statement is to include a statement by the auditors of the merging company that they have undertaken an examination of the common funds proposed to be merged for the purposes of –

(a) verifying the existence of the assets in each of those common funds and the value of those assets; and

(b) ascertaining whether the assets of those common funds comply with the Trustee Companies Act 1953 ; and

(c) ascertaining whether the nature, purpose and effect of the merger of those common funds is fairly set out in the explanatory statement; and

(d) reporting their findings to the members in each of those common funds on the results of the examination; and

(e) expressing an opinion as to whether the proposal to merge those common funds is fair and reasonable in the interests of the members in each of those common funds.

9.   Appointment as executor, trustee, agent or attorney to continue

Where, on and after the merger date –

(a) either of the trustee companies would, but for the merger, be entitled to obtain probate of the will of a deceased person or letters of administration of the estate of a deceased person, the merging company has the same right to a grant of probate of the will or administration of the estate as that trustee company would have had; or

(b) either of the trustee companies is named in any instrument as the holder of any office relating to a trust estate, the reference to the trustee company is taken to be a reference to the merging company; or

(c) either of the trustee companies is named as agent or attorney in any instrument of appointment, the reference to the trustee company is taken to be a reference to the merging company.

10.   Trust estates held by Perpetual Trustees Tasmania Limited to vest in merging company

On the merger date, all trust estates administered or managed by Perpetual Trustees Tasmania Limited are taken to be transferred to, and vest in, the merging company as successor in law without the execution of any transfer or other instrument.

11.   Application of Duties Act 2001

(1)  The Duties Act 2001 does not apply to any order of the Supreme Court made, or instrument executed, for the purpose of the transfer of the property of Perpetual Trustees Tasmania Limited to the merging company or otherwise to give effect to, or arising out of, the merger of the trustee companies or their common funds as mentioned in this Act.

(2)  The merging company must pay to the Treasurer an amount equal to 0.003 multiplied by the market capitalisation of the merging company.

(3)  For the purposes of this section –

(a) the market capitalisation is taken to be the average market value of the issued shares of the merging company, as agreed between the Treasurer and the merging company, based on the listed price performance of those shares on the Australian Stock Exchange during the period of 20 business days following the merger date; and

(b) a business day is taken to be a day on which the Australian Stock Exchange is open for trading; and

(c) failing agreement as mentioned in paragraph (a) , the market capitalisation is to be determined by the Commissioner of Stamp Duties after consultation with the Australian Stock Exchange.

(4)  An amount required to be paid under subsection (2)  –

(a) is to be paid within 14 days after the agreement or determination referred to in subsection (3) ; and

(b) is recoverable as a debt due to the Crown in any court of competent jurisdiction.

12.   Power of Minister to amend Trustee Companies Act 1953

The Minister may, by order published in the Gazette, amend Schedule 2 to the Trustee Companies Act 1953 by omitting or substituting the name of a trustee company as may be required to give effect to this Act.

13.   

14.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Attorney-General; and

(b) the department responsible to the Attorney-General in respect of the administration of this Act is the Department of Justice and Industrial Relations.

SCHEDULE 1 - Common Funds

Section 3