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Trustees' Commission Rules 1961

NIUE LAWS
LEGISLATION AS AT DECEMBER 2006

TRUSTEE

TRUSTEES’ COMMISSION RULES 1961

1 These Rules are the Trustees’ Commission Rules 1961.

2 Every application to the Court under section 72 of the Trustee Act 1956, for the allowance to any person who is or has been a trustee of the property subject to any trust or to his personal representative of a commission or percentage out of that property shall be made by motion under the Rules of Court for the time being in force.

3 (1) Every such motion shall be supported by an affidavit or affidavits showing –

(a) How and when the trust was constituted, the names of all present and previous trustees thereof, and the period during which each held office;

(b) Such information as may be necessary to enable an order giving directions as to service to be made;

(c) Particulars of any commission or percentage out of the trust property previously allowed by the Court to, or taken in accordance with the instrument (if any) creating the trust or with the consent of the beneficiaries or otherwise by, each person who is or has been a trustee or the personal representative of a trustee;

(d) Whether any profit, benefit, or advantage has been derived directly or indirectly by any trustee of the trust property, or by any partner, relative, servant, or personal representative of any trustee, from or in connection with the administration thereof; and, if so, particulars of every such profit, benefit, and advantage;

(e) The amount of the allowance sought by each applicant, and the basis or principle by which the same is arrived at; and, if an order is sought under section 72(3) apportioning the total amount allowed, the basis on which the proposed apportionment is sought;

(f) If the trustees who or whose personal representatives are making the application have not been the only trustees since the inception of the trust, information as to the extent to which, up to the date to which a commission or percentage is applied for, the trust property has been realised and income got in and the administration of the trust carried on and its responsibilities discharged by each person who is or has been a trustee;

(g) If the application is not made at or about the time of the final distribution of the trust property, sufficient information to enable the Court to determine what commission or percentage (if any) should be ordered forthwith having regard to the extent to which the duties of the trusteeship have already been discharged, and the period likely to elapse before that final distribution, and the changes in trusteeship which may occur during that period, and other relevant facts.

(2) The information referred to in paragraph (1) (b) is such information as may be necessary to enable the Court to decide what persons or classes of persons are interested and by what means the interests of each such person or class of persons may be adequately represented where the questions raised by the motion relate to or affect or may affect –

(a) The interests of several persons under any will, settlement, deed, instrument of gift, contract, or other instrument, or under any enactment; or

(b) The interests of infants, or of unborn persons, or of absentees; or

(c) The interests of the inhabitants of any locality represented by a local authority, or the interests of any similar class of persons; or

(d) The public interest.

(3) With respect to any motion under rule 3 the Court may –

(a) Direct any executor or trustee to represent infants, unborn persons, or absentees, or persons otherwise unrepresented, or otherwise provide for such representation;

(b) Direct that a guardian ad litem be appointed to represent any person where such a course appears necessary;

(c) Direct any person to represent others who have the like interests;

(d) Direct that any party or group of parties appear by a separate solicitor;

(e) Appoint counsel to represent any party separately as to all or any questions arising upon the motion, on such counsel undertaking to represent that party;

(f)–

(g) Direct that the Government Solicitor be served;

(h) Direct that any other Minister or functionary have notice of the motion;

(i) Direct that, with the consent of a Minister to be filed, any head of a Government Department or other officer or functionary may represent the public interest and direct that he be served;

(j) Direct that any local authority, public body, or other representative body of persons represent the inhabitants of any locality or any class of persons, unless it appears to the Court that their interests, or the interests of a considerable section of them, may be adverse to those of that local authority or public body or other representative body;

(k) Where a local authority, public body, or other representative body is itself the party moving, or is a party whose interests appear to the Court to be adverse to those of the inhabitants or class of persons represented by that local authority or body or a considerable section of them, direct in what manner those inhabitants or that class or that section shall be represented.

Subject to rules 5, 6 and 12 the following documents, duly verified by an affidavit or affidavits of a solicitor or public accountant, shall be filed in respect of every such motion –

(a) A copy of the will or other instrument (if any) creating the trust;

(b) Capital and income accounts of the trust or summarised statements thereof showing –

(i) The trust property and liabilities at the inception of the trust and at the date to which a commission or percentage is sought;

(ii) The gross capital realisations and other capital receipts, and the capital liabilities discharged and investments of capital made, and distributions of capital to beneficiaries and other capital payments made, during the period from the inception of the trust to the date to which a commission or percentage is sought, distinguishing those received and made by the trustees who or whose personal representatives are making the application from those received and made by other trustees (if any);

(iii) The gross income received and liabilities and outgoings discharged from income, and the distributions of income to beneficiaries, and other disbursements from income, during the last-mentioned period, distinguishing those received and made by the trustees who or whose personal representatives are making the application from those received and made by other trustees (if any);

(iv) The sums retained by or paid to solicitors, accountants, auctioneers, land agents, commission agents, brokers, and other agents during the said period in respect of capital and income respectively.

5 (1) Unless the Court or a Judge otherwise orders, the accounts of the trustees or summarised statements previously kept or made for the purposes of the trust may be adopted for the purposes of the said motion.

(2) Any information required by rules 3 and 4 and not contained in those accounts or summarised statements (including any information required in respect of administration by other trustees) shall be supplied by supplementary accounts or summarised statements verified in each case by an affidavit of a public accountant or solicitor.

6 In so far as any information and accounts or summarised statements required in support of any such motion have been supplied in support of any previous application to the Court for a commission or percentage, of these rules shall be deemed to that extent to have been complied with in connection with that motion.

7 The Court may at any time refer the motion or any matter being part thereof or connected therewith to the Registrar for inquiry and report.

8 Unless the Court or a Judge otherwise orders, reasonable notice to the satisfaction of the Registrar of any appointment made by the Registrar to proceed with his inquiry shall be given to every person who was entitled to be served with the motion, unless he has given notice in writing to the Registrar that he does not intend to appear or be represented at the inquiry.

9 The evidence of every witness called on the inquiry before the Registrar shall be taken down in writing and signed by the witness, and shall accompany the Registrar’s report to the Court.

10 (1) The Court may award costs to any applicant or other person affected by the application, whether any commission or percentage is allowed or not.

(2) If costs are allowed, all usual and proper disbursements, including agency charges, shall, unless the Court or a Judge otherwise orders, also be deemed to be allowed though not expressly mentioned.

11 The Court may direct that any costs be paid out of the trust property or any part thereof.

12 (1) The Court or a Judge, on motion made before or after the filing of a motion for a commission or percentage, and upon sufficient grounds, may by order dispense with the observance of all or any of the foregoing rules.

(2) A motion under this rule may in the first instance be made ex parte, but the Court or Judge may require notice to be given to such person or persons and in such manner as the Court or Judge may direct.