Corporations Act 2001
SLI 2010 No 88, reg 4, contained the following transitional arrangements:
4 Transitional arrangements for charging of fees
For section 1496 of the Act, Part 5D.3 (other than Division 4) of the Act applies to a licensed trustee company as set out in this regulation.
If a licensed trustee company had an existing client at the commencement of Schedule 1 to these Regulations, the fee the company was entitled to charge under the relevant State law for traditional trustee company services to the client continues to apply to those services whether or not the relevant State law has since been repealed.
In this regulation, a relevant State law is a law of a State or Territory in force immediately before the commencement of Schedule 2 to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009 that regulates the fees that may be charged by companies for the provision of traditional trustee company services.
If the Court is of the opinion that fees charged by a licensed trustee company in respect of any estate are excessive, the Court may review the fees and may, on the review, reduce the fees.601TEA(2) [ Application]
(a) that are charged as permitted by section 601TBB ; or
(b) that relate to a charitable trust and that are charged as permitted by Subdivision A of Division 4 . 601TEA(3) [ Factors the Court may consider]
(a) the extent to which the work performed by the trustee company was reasonably necessary;
(b) the extent to which the work likely to be performed by the trustee company is likely to be reasonably necessary;
(c) the period during which the work was, or is likely to be, performed by the trustee company;
(d) the quality of the work performed, or likely to be performed, by the trustee company;
(e) the complexity (or otherwise) of the work performed, or likely to be performed, by the trustee company;
(f) the extent (if any) to which the trustee company was, or is likely to be, required to deal with extraordinary issues;
(g) the extent (if any) to which the trustee company was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;
(h) the value and nature of any property dealt with, or likely to be dealt with, by the trustee company;
(i) if the fees are ascertained, in whole or in part, on a time basis - the time properly taken, or likely to be properly taken, by the trustee company in performing the work;
(j) any other relevant matters. 601TEA(4) [ How matter comes before Court]
The Court may exercise its powers under subsection (1) either on its own motion or on the application by or on behalf of a person with a proper interest in the estate.601TEA(5) [ Costs when fees reduced by more than 10%]
If the fees are reduced by more than 10 % , the trustee company must, unless the Court in special circumstances otherwise orders, pay the costs of the review.601TEA(6) [ Court's discretion for costs]
Subject to subsection (5), all questions of costs of the review are in the discretion of the Court.
[ CCH Note: See application provision under Pt 5D.3 heading.]