Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In this
Part —
conveyance on sale includes —
(a)
every instrument and decree or order of any court or of the Commissioner of
Titles, whereby any property or any estate or interest in any property on the
sale thereof is transferred to or vested in the purchaser or any other person
on his behalf or by his direction;
(b)
every transfer or assignment of a lease of any lands; and
(c)
every decree or order of any court or of the Commissioner of Titles for, or
having the effect of an order for, foreclosure;
custodian trustee has the same meaning as it has
in section 15 of the Trustees Act 1962 ;
discretionary trustee means a trustee of any
property over which any person has a power of appointment which was not
created by will;
disposition , in relation to a unit,
includes —
(a) a
transfer or other disposition of the unit;
(b) the
allotment or issue of the unit;
(c) the
redemption, surrender or cancellation of the unit;
(d) the
variation, abrogation or alteration of a right pertaining to the unit with
respect to the capital of the unit trust scheme; and
(e) any
means by which a unit is disposed of or the rights of its holder are
diminished;
provisional public trust means a unit trust scheme
that is registered under section 63ADA(2);
start up period means —
(a) in
relation to a unit trust scheme except a provisional public trust to which
paragraph (b) applies — the period of one year beginning on
the day on which the first units under the scheme are issued; or
(b) in
relation to a provisional public trust for which the prospectus or information
memorandum has been, or is to be, lodged with the Australian Securities and
Investments Commission — the period of one year beginning
on —
(i)
the day on which the first units under the scheme are
issued; or
(ii)
the day of lodgement,
whichever period is
the later to expire;
transfer , in relation to a unit, means a
conveyance, transfer, or instrument chargeable as a conveyance;
trustee means, unless the contrary intention
appears, a trustee who is not a discretionary trustee or a unit trustee;
unit means any right or interest, whether
described as a unit or otherwise, of a beneficiary under a unit trust scheme
and includes an interest in a unit;
unit trust scheme means, unless the contrary
intention appears, a private unit trust scheme within the meaning in
subsection (2);
unit trustee means a trustee of a unit trust
scheme.
(1aa) For the purposes
of sections 63AA(2a)(a) and 63AB(2)(g), the Commissioner may treat 2 or
more parcels of land as a single parcel of land if the Commissioner is
satisfied that it is appropriate to do so having regard to —
(a) the
ownership of the parcels of land;
(b) the
proximity of the parcels of land;
(c) the
use of the parcels of land; and
(d) any
other matter the Commissioner considers to be relevant.
(2) A unit trust
scheme is a private unit trust scheme if at the time of any conveyance,
transfer or other disposition of a unit —
(a) the
unit trust scheme is not —
(i)
one to which Division 11 (sections 1451 to
1465) of Part 11.2 of the Corporations Law applied by reason of
section 1452 of that Law; or
(ii)
a managed investment scheme registered under
section 601EB of the Corporations Act,
or is a scheme
referred to in subparagraph (i) or (ii) but no units have been issued to
the public or an insufficient number of persons is beneficially entitled to
units under the scheme; and
(b) the
unit trust scheme —
(i)
is not an approved deposit fund or a pooled
superannuation trust within the meaning of the
Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or
(ii)
is an approved deposit fund within the meaning of the
Superannuation Industry (Supervision) Act 1993 of the Commonwealth but no
units have been issued to the public or an insufficient number of persons is
beneficially entitled to units under the scheme.
(3) An insufficient
number of persons is beneficially entitled to units under a unit trust scheme
if —
(a)
fewer than 50 persons are so entitled; or
(b) 20
or fewer persons are so entitled to 75% or more of the total issued units
under the scheme.
(4) For the purposes
of subsection (2)(a) and (b)(ii) —
(a) each
partner in a partnership that holds units under a unit trust scheme is to be
treated as beneficially entitled to the same proportion of the units as the
proportion of the partnership assets to which the partner would be entitled on
the dissolution of the partnership and after all the debts and liabilities of
the partnership had been discharged; and
(b) a
person is to be treated as beneficially entitled to a unit held by the person
or by a related person.
(5) For the purposes
of subsection (4), the following persons are related —
(a)
individuals who are spouses or de facto partners of each other or between whom
the relationship is that of parent and child;
(b)
related corporations;
(c) a
trustee and a trustee of another trust if —
(i)
there is any beneficiary common to the trusts, whether
the beneficiary has a vested share or is contingently entitled or may benefit
from a discretionary trust; and
(ii)
the beneficiary’s share or interest in each trust
constitutes more than 50% of the trust property or of the issued units in the
unit trust scheme;
(d) an
individual and a corporation if the individual is a majority shareholder,
director or secretary of the corporation or a related corporation;
(e) an
individual and a trustee if —
(i)
the individual is a beneficiary under the trust, whether
the individual has a vested share or is contingently entitled or may benefit
from a discretionary trust; and
(ii)
the individual’s share or interest in the trust
constitutes more than 50% of the trust property or of the issued units in the
unit trust scheme;
(f) a
corporation and a trustee if —
(i)
the corporation or a majority shareholder, director or
secretary of the corporation is a beneficiary of the trust; or
(ii)
a related corporation to the corporation is a beneficiary
of the trust,
and that
beneficiary’s share or interest in the trust constitutes more than 50%
of the trust property or of the issued units in the unit trust scheme.
(6) For the purposes
of subsection (5) —
(a) an
illegitimate person is to be treated as the legitimate child of that
person’s parents;
(b) it
is irrelevant whether a relationship is of the whole or half-blood, or whether
it is a natural relationship or a relationship established by a written law;
(c) a
majority shareholder , in relation to a corporation, is a person who would
have a substantial holding in the corporation under the definition of
“substantial holding” in section 9 of the Corporations Act
even if the reference in that definition to 5% were a reference to 50%;
and
(d) a
trustee includes a discretionary trustee and a unit trustee.
(7) For the purposes
of subsection (5), the share or interest of a person in a trust is to be
determined as the greatest share or interest that the person could derive at
any time from the trust whether by the fulfilment of any condition, the
outcome of any contingency or the exercise of any power or discretion or
otherwise, and in particular a person that may benefit from a discretionary
trust is to be deemed to be entitled to —
(a) the
property subject to the discretionary trust, unless the Commissioner
determines otherwise; or
(b) such
part of that property as the Commissioner determines.
[Section 63 inserted by No. 37 of 1979
s. 41; amended by No. 112 of 1982 s. 5; No. 33 of 1987
s. 15; No. 39 of 1994 s. 21; No. 48 of 1996 s. 44;
No. 24 of 1999 s. 4; No. 3 of 2001 s. 18; No. 10 of
2001 s. 167; No. 36 of 2001 s. 26; No. 2 of 2003
s. 32; No. 66 of 2003 s. 17.]