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services to the client continues to apply to those services whether or not the relevant State law has since been repealed.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.
This section applies to the performance by a licensed trustee company of an estate management function relating to a particular estate.601TBE(2) [ Fees payable out of capital or income of estate]
Subject to subsection (3), fees charged by the trustee company, in accordance with this Part, for the performance of the function are payable to the trustee company out of the capital or income of the relevant estate.601TBE(3) [ Exceptions]
(a) a management fee referred to in section 601TDD can only come out of the income of the relevant estate; and
(b) a common fund administration fee referred to in section 601TDE or 601TDI can only come out of the income received by the common fund on the assets of the charitable trust concerned that are included in the fund.
ASIC may, on application in writing by a licensed trustee company, approve payment of a proposed fee that, if paid without the approval, would contravene subsection (3), if ASIC is satisfied that:
(a) the payment of the fee will not significantly affect the capital of the relevant estate or charitable trust concerned; and
(b) the fee is a fair reflection of the work and expertise required to perform the estate management function.
[ CCH Note: See application provision under Pt 5D.3 heading.]
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