Public Trusts Act 1882

Public Trusts Act 1882

An Act to vest property held on public, religious, and charitable trusts in the succeeding trustees without conveyance or assignment

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:

1.   Short title and commencement

This Act may be cited as the Public Trusts Act 1882 , and shall commence from the first day of December 1882.

2.   Interpretation

[Section 2 Amended by 25 Geo. V No. 78 ][Section 2 Amended by No. 19 of 1980, s. 171 and Sched. 2 ][Section 2 Amended by No. 21 of 1996, s. 20 and Sched. 1 ]In this Act, unless the contrary intention appears –

approved form means a form approved by the Recorder under section 169A of the Land Titles Act 1980 ;

document of title includes any conveyance, lease, mortgage, or certificate of title, and any bond, promissory note, bill of exchange, policy of assurance, debenture, treasury bill, certificate, warrant, or other document evidencing title to any property where any assignment, transfer, or indorsement, or the signature of the owner to or upon any matter or thing is necessary to pass such property, but does not include any document the mere delivery whereof passes the property comprised therein;

property means property real or personal, including choses in action;

registered head or representative of a religious denomination means the person for the time being registered as such head or representative under the provisions of this Act;

the Recorder means the Recorder of Titles.

3.   What trusts may be registered under Act

All trusts for public, religious, educational, or charitable purposes, and all trusts which the Attorney-General may certify are proper to be registered under this Act may be registered as hereinafter provided.

4.   Registration of trusts

Except as hereinafter mentioned, every application to register any trust under this Act must be made by the same authority that is necessary for the appointment of a new trustee of such trust, and the vesting of the trust property, and every part thereof in such new trustee, whether solely or together with any surviving or continuing trustees, and, in case of any trust for purposes connected with any religious denomination, with the consent of the registered head or representative of such denomination in Tasmania or in the part of Tasmania to which such trust relates, and, in all other cases, with the consent of the Attorney-General.

5.   Evidence of authority to register

[Section 5 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] The authority or consent of any person to register any trust under this Act shall be evidenced by writing under the hand of such person, and attested by an Australian legal practitioner, public notary, or justice. Any other authority or consent shall be evidenced to the satisfaction of the Recorder by statutory declaration or otherwise.

6.   Power of Recorder to dispense with authority of trustee, &c.

(1)  When any trustee, or the executor, or administrator of any trustee whose authority would be necessary for the registration of any trust under this Act cannot be found, or has been absent from Tasmania for six consecutive months, or refuses or neglects for twenty-eight days after demand to give that authority, the Recorder may, if he thinks fit, order by writing under his hand that the authority of such person be dispensed with; and every such order shall be published in the Gazette; and thereupon such trust may be registered under this Act notwithstanding that the authority of such person has not been obtained.

(2)  The Recorder shall not dispense with the authority of any person who can be found, and is in Tasmania, except after notice to such person of the application to dispense with his authority and giving him an opportunity to be heard in opposition to the same.

(3)  If it appear to the Recorder that any person with whose consent he is asked to dispense has, or is likely to have, any claim to any payment or indemnity of which he could lawfully demand satisfaction before parting with the trust property to a duly appointed successor, the Recorder may require as a condition to dispensing with the consent of such person that security be given in such form and in such amount as the Recorder may deem sufficient for the satisfaction of such claim.

(4)  The demand hereinbefore mentioned shall be in writing, and in case of trusts for purposes connected with any religious denomination shall be made by or on behalf of the registered head or representative of the denomination, and in all other cases by the other trustees or trustee or by the Attorney-General.

7.   Application to register trusts

[Section 7 Amended by No. 21 of 1996, s. 20 and Sched. 1 ]Every application to register any trust under this Act shall be in writing addressed to the Recorder, in the approved form signed by some one at least of the persons whose authority or consent is necessary for such registration, and shall be supported by evidence showing –

(a) what are the trusts;

(b) what are the names and descriptions of the trustees;

(c) how the trustees may be changed;

(d) of what the trust property consists;

(e) that the application is made by the authority and with the consent hereinbefore required; and

(f) that every document, matter, and thing, relating to or affecting any of the matters aforesaid is mentioned in the application.

8.   How application is to be dealt with

[Section 8 Amended by No. 19 of 1980, s. 171 and Sched. 2 ]If the Recorder is satisfied that the trust is one which may be registered under this Act, and that the evidence by which the application is supported is sufficient, he shall register such trust.

9.   Register of public trusts

[Section 9 Amended by No. 21 of 1996, s. 20 and Sched. 1 ]The Recorder shall keep or cause to be kept a book, to be called the Register of Public Trusts, the folios of which shall be numbered consecutively, and each of which shall be in the approved form.

10.   Register of trusts

Whenever the Recorder decides as aforesaid to register any trust he shall enter or cause to be entered at the top of a folium in the Register of Public Trusts a short description of the trust such as he may deem sufficient for the purpose of distinguishing it from other registered trusts, and in case the trust is for religious purposes connected with any particular religious denomination, of denoting with what denomination it is connected, and he shall enter or cause to be entered in the proper line and column the number of the trustees, the name and description of every trustee, and the date of making the entry, and sign his name in the proper column in the same line with the name of every trustee to authenticate the entry; and thereupon such trust shall be deemed to be registered under the provisions of this Act.

11.   Documents declaring trusts to be marked with memorandum of registration

Upon registering any trust under the provisions of this Act, the Recorder shall write or cause to be written upon every document showing the nature of such trust, or the manner of changing the trustees, a memorandum setting forth the description by which, and the folium of the Register of Public Trusts on which such trust is registered, so as to connect such document with such register, together with the date of signing such memorandum, and shall sign such memorandum.

12.   Registration of alteration in trust

(1)  If after the registration of any trust under the provisions of this Act, any instrument, matter, or thing be made or done which in any manner alters or affects such trust or the manner of changing the trustees, any person concerned, or the Attorney-General in case of trusts connected with any religious denomination, with the consent of the registered head or representative of the denomination, may produce to the Recorder such instrument or any document evidencing such matter or thing, and may prove to the satisfaction of the Recorder that such instrument, matter, or thing has been duly made or done; and thereupon, if the Recorder be of opinion that the instrument or document produced be proper and convenient for the purpose, he shall register the same, and shall write or cause to be written upon such instrument or document a memorandum as in section eleven mentioned, and sign the same.

(2)  In any case in which he may think fit, the Recorder may, before the registration of any such instrument or document, direct notice to be given to any person of the application to register the same so that such person may have an opportunity of being heard in opposition to such application.

13.   Custody of documents declaring trusts

The Recorder shall retain in his custody all documents or instruments upon which he has made memoranda as in sections eleven and twelve mentioned. Provided always, that any person entitled to the custody of any such instrument or document may deposit with the Recorder a copy thereof fairly engrossed upon parchment, and the Recorder shall ascertain that such copy is a true copy, and certify thereon by writing under his hand that such is the case, together with the name of the person to whom and the date at which the original is delivered up, and thereupon the Recorder may deliver up to such person the original of such document.

14.   Endorsement of documents of title

When any trust is registered under the provisions of this Act, the registered trustees, or one or more of them, may produce to the Recorder any document of title of such registered trustees or their predecessors in office, and may prove to the satisfaction of the Recorder that the property to which such document relates, or some part thereof, is held upon such trust, and thereupon the Recorder shall make or cause to be made on such document of title a memorandum that the premises comprised therein, or such part thereof, are held by the trustees for the time being of such trust, describing such trust so as to identify the same with the description thereof in the Register of Public Trusts and by the number of the folium of such register on which such trust is registered, together with the date of signing such memorandum, and shall sign such memorandum; and upon the signature of such memorandum by the Recorder, all the estate, right, title, and interest of any predecessors in office of such registered trustees in any property comprised in such document of title, or in any part thereof, referred to in such memorandum as held on such trust, shall vest in such registered trustees, and the registered trustees or trustee for the time being shall be empowered to do and suffer all acts, matters, and things in respect of such document of title or such property as if their names were written in such document of title in place of the names of any their predecessors in office named therein.

15.   Notice that lands subject to operation of this Act to appear on memorandum of registration of document of title

[Section 15 Amended by 25 Geo. V No. 78 ]When upon any document of title relating to or in any manner affecting any lands in Tasmania that has been registered under any law relating to the registration of written instruments, an endorsement is made by the Recorder under the provisions of this Act, or an acknowledgment is signed by the registered trustees or trustee thereof that the same is held upon any registered trust, a like memorandum, or a copy or memorandum of such acknowledgment, as the case may be, shall be made upon the memorial of the registration thereof; and in registering any such document of title, in which the grantees are the registered trustees of any registered trust, under any such law, the memorial of the registration of such document shall describe the grantees as such trustees of such trust, describing the trust so as to identify it with the description of the same in the Register of Public Trusts; and if in any case before the provisions of this section are complied with, any deed, conveyance, or other instrument in writing which, but for the operation of this Act, would operate to pass any estate or interest at law or in equity, be duly registered in conformity with any such law as aforesaid, such deed, conveyance, or other instrument in writing shall have the same effect as if this Act had not been passed.

16.   Registration of death of trustee where date of death known

Whenever it is proved to the satisfaction of the Recorder that any registered trustee of any registered trust is dead and the date of his death is also proved, the Recorder shall register such death and the date thereof by writing or causing to be written in the folium of the Register of Public Trusts relating to such trust, on the same line with the name of the trustee, in the column headed "cause of cessation from office of trustee", the word "deceased", and in the column headed "date of cessation from office of trustee" the date of such death, and in the proper column shall sign his name to authenticate such entry.

17.   Registration of death of trustee where date of death not certain

Whenever it is proved to the satisfaction of the Recorder that any registered trustee of any registered trust is dead but there is no evidence to satisfy the Recorder when he died, the Recorder shall register such death by writing or causing to be written in the folium in the Register of Public Trusts relating to such trust on the same line with the name of the trustee, in the column headed "cause of cessation from office of trustee" the word "dead", and in the column headed "date of cessation from office of trustee" the date of such entry, and in the proper column shall sign his name to authenticate such entry.

18.   Registration of retirement of trustee

Whenever it is proved to the satisfaction of the Recorder that any registered trustee of any registered trust has in any manner, except by death, ceased to be a trustee, the Recorder shall register the cessation from office of such trustee by writing or causing to be written on the folium of the Register of Public Trusts relating to such trust, in the same line with the name of the trustee, in the column headed "cause of cessation from office of trustee" the word "retired", and in the column headed "date of cessation from office of trustee" the date of making the entry, and shall authenticate such entry by signing his name in the proper column; and, for the purpose of this section, any person shall be deemed to have ceased to be a trustee when all other matters necessary for his cessation from office have been accomplished notwithstanding that the trust property is still vested in him.

19.   Registration of new trustee

Whenever it is proved to the satisfaction of the Recorder that any person has been duly appointed a trustee of any registered trust and has accepted such trust, he shall register the appointment of such trustee, and shall in the next vacant line on the folium of the Register of Public Trusts relating to such trust, and in the proper columns, enter or cause to be entered the name and description of such trustee and the date of making the entry, and shall sign his name to authenticate the same.

20.   Transfers and certificates, &c.

[Section 20 Amended by No. 19 of 1980, s. 171 and Sched. 1 ]Any transfer, lease, mortgage, or charge under the provisions of the Land Titles Act 1980 may be executed to the trustees of any trust registered under the provisions of this Act, describing them as such trustees as aforesaid, and stating that the trust is registered under the provisions of this Act, and describing such trust so as to identify it with the description of the same in the Register of Public Trusts, and the trustees may be described in the Register kept under the Land Titles Act 1980 by the same description; but no such description shall be deemed to affect any person with notice of the trusts, or entitle, require, or concern any person to inquire into or ascertain such trusts; and the persons registered as trustees of such trusts in the Register of Public Trusts shall be deemed the registered proprietors of the property comprised in such transfer or lease.

21.   Vesting of trust property

[Section 21 Amended by 25 Geo. V No. 78 ]

(1)  Upon the registration under the provisions of this Act of the death or other cessation from office of any registered trustee of any registered trust, the property hereinafter mentioned vested in such trustee upon such trust, or, in case he is dead, which was vested in him upon such trust at the time of his death, shall vest in the remaining registered trustees, or, in case there is no registered trustee, in the next trustee who may be registered.

(2)  Upon such registration of any new trustee the property hereinafter mentioned vested in the other registered trustees shall vest in them or him jointly with such new trustee, that is to say, all property that will pass by delivery merely of such property, or of any document of title relating thereto, or that is comprised in any document of title made expressly upon such trust, or upon which an acknowledgment in writing that the same is held upon such trust has been signed by the trustees named therein, or upon which any such memorandum as aforesaid that the premises comprised therein are held by the trustees of such trust has been made by the Recorder; and so much of any property comprised in any document of title upon which any such memorandum as aforesaid that some part of the premises comprised therein is held by the trustees of such trust has been so made and signed, as is referred to in such memorandum as so held.

(3)  For the purposes of this section, it shall be sufficient if any trust is described in any document of title, memorandum, or acknowledgment so as to identify the same with the registration thereof in the Register of Public Trusts; and the registered trustees shall be empowered to do and suffer all acts, matters, and things with respect to any such property that any their predecessors in office as such trustees might have done.

22.   Trustees to cause property to vest in successor

[Section 22 Amended by 25 Geo. V No. 78 ]It shall be the duty of the trustees of every trust registered under the provisions of this Act to cause all property assured to or vested in them upon such trust to be so assured or dealt with that the same may vest in their successors under the provisions of this Act.

23.   Legal proceedings concerning property held on registered trust

[Section 23 Amended by 25 Geo. V No. 78 ]All legal proceedings whatever concerning any property held upon any registered trust may be had by or against the registered trustees in their proper names as such trustees, describing the trust so as to identify the same with the registration thereof in the Register of Public Trusts; and no such proceedings shall be discontinued or abated by reason of any change in such trustees by death or otherwise, but shall continue by or against the remaining or succeeding trustees notwithstanding.

24.   Entries in register conclusive

[Section 24 Amended by 25 Geo. V No. 78 ]Every trust registered under the provisions of this Act shall be deemed to be a trust that might be properly registered under the provisions hereof, and every entry in the Register of Public Trusts shall, for the purpose of determining who are or were at any time the trustees of any trust registered under the provisions of this Act, be conclusive evidence, and may be sufficiently proved for all purposes by any copy thereof certified under the hand of the Recorder.

25.   Trusts of property held on registered trust: How proved

[Section 25 Amended by 25 Geo. V No. 78 ]The trusts upon which the property subject to any registered trust is held may be sufficiently proved for all purposes by the production of the instruments and documents held by the Recorder, whether copies or originals, or any copy thereof certified under the hand of the Recorder.

26.   Power to revest mortgaged land by receipt of registered trustees

[Section 26 Amended by 25 Geo. V No. 78 ][Section 26 Amended by No. 21 of 1996, s. 20 and Sched. 1 ]When all moneys intended to be secured by any mortgage or further charge given to the trustees of any registered trust expressly as such trustees, or upon such trust, or upon which any such memorandum as aforesaid has been made by the Recorder, or upon which the mortgagees named therein have signed any written acknowledgment that such mortgage or further charge is held upon such trust, or all moneys intended to be secured by any mortgage or further charge given by the trustees of any registered trust expressly as such trustees, or upon which the mortgagors named therein have signed any written acknowledgment that the equity of redemption is held upon such trust, have been fully paid or discharged, the persons entitled to receive the moneys owing upon the security of such mortgage or further charge may indorse upon or annex to such mortgage or further charge a receipt in writing under their hands, in the approved form, and such receipt shall vacate the mortgage or further charge and debt, and also all further charges relating to the same land dated subsequently to the mortgage or further charge on or to which such receipt shall be indorsed or annexed and prior to the date of the receipt, and vest the estate of and in the property therein comprised in the persons entitled to the equity of redemption without any reconveyance or reassignment whatever, and so that the person entitled to the equity of redemption, if the original mortgagors shall hold the property, to the same uses and upon the same trusts, so far as they have not been varied or altered, upon which the property was held before the mortgage, and if not the original mortgagor, to the same uses and upon the same trusts as the equitable estate.

27.   Power of succeeding trustee to undertake liability of predecessor, &c.

On and after the retirement of any trustee from any registered trust and the appointment of his successor, any person to whom such trustee, his executors or administrators, may be under any liability incurred for the benefit or in respect of such trust, and such successor may sign a memorandum in writing under their hands by which the new trustee undertakes to answer such liability of the retiring trustee, or of his executors or administrators, and the person to whom such liability is due to accept such undertaking in discharge of the retiring trustee, his executors or administrators; and upon the registration of such memorandum the retiring trustee, or his executors or administrators, shall be discharged from such liability, and the succeeding trustee shall be bound to answer the same as if it had been incurred by him in the first instance.

28.   Right of person in whom chose in action vested under Act to sue in own name

[Section 28 Amended by 25 Geo. V No. 78 ]In any case where under the provisions of this Act any chose in action becomes vested in any person either solely or jointly with any other person, such person may sue for and recover the same in his own name either solely or jointly with such other person, as the case may be.

29.   Application for registration as head or representative of a religious denomination

The head or representative of any religious denomination in Tasmania or any part thereof may make an application to the Recorder to be registered as such head or representative, and every such application shall set forth the name of the denomination of which such person claims to be the head or representative, the part of Tasmania in which he claims to be the head or representative thereof, the designation of such part of Tasmania according to the usages of the denomination, the full name and surname of the applicant, his address, and his proper title of office according to the usages of the denomination by virtue of which he claims to be head or representative of such denomination, and the date when and the authority by which he acquired such office, and, when any other person has been previously registered as such head or representative in the part of Tasmania to which the application relates, the person in whose place he claims to be registered.

30.   How application is to be dealt with

On receiving any such application from any person to be registered as the head or representative of any religious denomination, the Recorder, upon proof to his satisfaction that the applicant is such head or representative according to the usages of such denomination, shall register the applicant according to the tenor of his application: Provided always that, in case of an application to be registered in the place of any person who does not consent to such application, notice of the application shall be given to such last-mentioned person, and such person shall have an opportunity of being heard before the Recorder in opposition to such application, unless it be proved to the satisfaction of the Recorder that such last-mentioned person is absent from Tasmania and not expected to return within twelve months, or cannot be found.

31.   Right of applicant to withdraw application

[Section 31 Amended by 25 Geo. V No. 78 ]Any person who has applied to be registered as head or representative of a religious denomination may at any time, by writing under his hand addressed to and lodged with the Recorder, withdraw his application, and thereupon such application shall be withdrawn.

32.   Registration of head or representative of denomination when there has been no previous registration

When registering any person as head or representative of any religious denomination, when there has been no previous registration of a head or representative of such denomination in any part of Tasmania to which such application relates, the Recorder shall enter or cause to be entered in a book to be called the denominational register the following particulars, that is to say: The name of the denomination; The description of the part of Tasmania to which the application relates; The designation of such part of Tasmania according to the usages of the denomination; The title of office of the applicant according to the usages of the denomination; The full name and surname of the applicant; His address, and any further description of such applicant that the Recorder may think desirable, together with the date of making the entry, and the Recorder shall sign such entry to authenticate the same.

33.   Succeeding head or representative of denomination: How registered

The Recorder shall register any person as head or representative of a religious denomination in place of any other person for the whole of Tasmania to which such previous registration relates by entering or causing to be entered in the denominational register, below the registration of the person previously registered, a memorandum of the full name and surname, together with the address and any further description the Recorder may think desirable of such first-mentioned person, and that he is registered in the place of the person previously registered, together with the date of making such entry, and shall sign such entry to authenticate the same.

34.   Succeeding head or representative in part only: How registered

The Recorder shall register any person as head or representative of a denomination in place of any other person for a portion only of the part of Tasmania to which such previous registration relates as in cases where there has been no previous registration, and shall enter or cause to be entered in the denominational register, below the registration of the person previously registered, a memorandum that the registration of the person previously registered is cancelled as regards the part of Tasmania included in such subsequent registration, and shall date such memorandum with the same date as the subsequent registration, and sign the same.

35.   Cancellation of registration of head or representative of denomination

Any person registered as the head or representative of any religious denomination in Tasmania or any part thereof may, by writing under his hand, request the Recorder to cancel his registration either entirely or as to any part of Tasmania, and thereupon the Recorder shall enter or cause to be entered in the denominational register a memorandum that the registration of such person is cancelled, or cancelled as to such part of Tasmania, at his request, and together with the date of making such memorandum, and shall sign the same.

36.   Denominational register conclusive evidence

The denominational register shall be conclusive evidence of all matters authorized to be inserted therein for the purposes of this Act, and every entry therein may be sufficiently proved for all purposes by any copy thereof certified under the hand of the Recorder.

37.   Fees

[Section 37 Amended by 25 Geo. V No. 78 ]

(1)  The fees set forth in Schedule 2 shall be paid in respect of the matters therein mentioned transacted under this Act.

(2)  [Section 37 Subsection (2) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] [Section 37 Subsection (2) amended by No. 68 of 1994, s. 3 and Sched. 1 ]All fees received by the Recorder under this Act shall be paid into the Public Account.

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40.   Power of Recorder to require explanation and production of documents

[Section 40 Amended by 25 Geo. V No. 78 ]

(1)  [Section 40 Subsection (1) amended by No. 21 of 1996, s. 20 and Sched. 1 ]The Recorder may by summons under his hand in the approved form, require any person to appear, at a time and place to be appointed in such summons, and give any explanation concerning any application under this Act, and to produce any documents of title, or other documents in his possession or within his control affecting such application.

(2)  The Recorder is hereby authorized to examine upon oath (which oath he is hereby empowered to administer) such person; and any such person who shall fail, refuse, or neglect to attend the Recorder for the purpose of being examined, or to produce any such documents of title or other documents, or to allow the same to be inspected, or shall refuse or neglect to give any such explanation as aforesaid, shall be liable on any such default to be committed by the Recorder as in the case of a contempt of the Supreme Court, and if the information or document appears to the Recorder to be material, the Recorder shall not be bound to give any direction in the matter of the application until the same is given or produced.

41.   Power of Recorder to state case for Supreme Court

It shall be lawful for the Recorder, whenever any question shall arise with regard to the performance of any duty or the exercise of any of the functions by this Act conferred or imposed on him, to state a case for the opinion of the Supreme Court; and thereupon it shall be lawful for the said Court to give its judgment thereon, and such judgment shall be binding upon him.

42.   Appeal against decision of Recorder

[Section 42 Amended by 25 Geo. V No. 78 ]

(1)  If any person is dissatisfied with the decision of the Recorder on any application under this Act, such person may appeal therefrom to the Supreme Court by giving to the Recorder, and to any other person who may have appeared before the Recorder on such application, eighteen days' notice in writing of his intention, and within fourteen days after the delivery of such notice, the Recorder shall cause to be forwarded to the Registrar of the Supreme Court all documents lodged in support of the application, together with a copy of his notes of the evidence of any witness who may have been examined with reference to the application, and a statement of the reasons for his decision, and also, if the Recorder think fit, any affidavits setting forth any matters he may desire to bring under the notice of the Court.

(2)  Upon hearing any such appeal the Supreme Court may affirm, vary, or reverse the decision of the Recorder, and may give such directions in the matter as may seem just, and the Court may direct that further evidence be taken in addition to the evidence forwarded by the Recorder, or that notice of the hearing such appeal be given to any person, and may adjourn the hearing of any such appeal to allow of such being done, and the Recorder shall give effect to the order of the Supreme Court upon hearing such appeal.

(3)  The Supreme Court may direct any person who has appeared before the Recorder or the Supreme Court in the matter of such application or appeal to pay the costs of such application or appeal or any part thereof as may seem just.

43.   Power of Recorder to correct certain errors

The Recorder shall correct errors in the Register of Public Trusts, or the Denominational Register, or in any document mentioned in section twenty or in entries made in the same, or in memoranda made or caused to be made by him under the provisions of this Act, and may supply entries and memoranda omitted to be made under the provisions of this Act, but in the correction of any such error he shall not erase or render illegible the original words, and shall affix the date on which such correction was made or entry or memorandum supplied, and initial the same; and every error, entry, or memorandum so corrected or supplied shall have the like validity and effect as if such error had not been made, or such entry or memorandum omitted, except as regards any transaction prior to the actual time of correcting the error or supplying the omitted entry or memorandum.

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SCHEDULE 1

SCHEDULE 2 - Scale of Fees

Section 37