Creating a Deed

The common law requirements for the creation of a Deed by an individual are affected by legislation in all jurisdictions of Australia:

New South Wales: Conveyancing Act 1919 (NSW) – Section 38.

Victoria: Property Law Act 1958 (Vic) – Sections 73, 73A and 73B

Queensland: Property Law Act 1974 (Qld) Sections 44, 45 and 47

Western Australia: Property Law Act 1969 (WA)  – Sections 9 and 12

South Australia: Law of Property Act 1936 (SA) – Sections  41 and 41AA

Tasmania: Conveyancing and Law of Property Act 1884 (Tas)  – Section 63

ACT: Conveyancing Act 1919 (ACT) – Section 38

NT: Law of Property Act 2000 (NT) – Sections 46, 47 and 49

A Company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) {without using a common seal} or subsection (2) {using a common seal} of Section 127 of the Corporations Act 2001.

Amending Deeds

If a Trust Deed has a Power of Amendment to allow the Board of the Employer-Sponsor by a majority to amend the terms of the trust subject to the written assent of the Trustees then a Directors’ Resolution can be circulated to the Directors in accordance with Section 248A of the Corporations Act 2001 and the results recorded in the Minute Book (Section 251A or the Corporations Act 2001).The written assent of the Trustees must also be recorded on the Resolution.

Trustees have to retain the documents that vary the terms of the trust and allow beneficiaries to have access to these “trust documents“.

Beneficiaries are entitled to any deeds or documents constituting or varying the terms of the trust {Foreman v Kingston [2004] 1 NZLR 841 at [100](HC)}

In relation to a discretionary trust Potter J in the New Zealand High Court in Foreman v Kingston [2004] 1 NZLR 841 at 863 ordered:

The beneficiaries are entitled to names of all past and present trustees and the dates of appointment and retirement or resignation, including copies of any deed or documents effecting these changes. I order that they be disclosed. The beneficiaries are also entitled to any deeds or documents constituting or varying the terms of the trusts. To the extent that these have not already been provided I order that they be disclosed

At 862 Potter J ruled in relation to “Copies of all deeds appointing all previous and present trustees as trustees of the trusts and estate” – These are trust documents and I order that they be disclosed”.

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