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Vanuatu Consolidated Legislation - 1988 |
Commencement: 13 May 1971
LAWS OF THE REPUBLIC OF VANUATU
REVISED EDITION 1988
CHAPTER 69
TRUST COMPANIES
QR 6 of 1971
QR 3 of 1973
QR 16 of 1973
QR 5 of 1978
QR 6 of 1978
Act 18 of 1984
Act 10 of 1988
ARRANGEMENT OF SECTIONS
SECTION
1. Interpretation
PART II
3. Application shall be made to the Minister
5. Use of the words "trust company" and similar words restricted
9. Preservation of secrecy
PART III
Provisions for trust company acting as executor or administrator
10. Assets of trust company liable for proper administration
11. Administration bonds
12. Power to act as executor or administrator
13. Trust company may act in other capacities
PART IV
General Provisions
19. Power of search
20. Prohibition on participation etc. by trust company in certain corporate bodies
21. Rules
22. Saving
23. Fee payable by licensed trust companies
SCHEDULE - Particulars to be furnished in writing by persons applying for a licence to carry on business as a trust company.
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TRUST COMPANIES
To provide for the licensing and the regulation of the business of trust companies carried on in Vanuatu.
PART I
PRELIMINARY PROVISIONS
INTERPRETATION
1. In this Act, unless the context otherwise requires -
"authorised agent" means a person designated by a trust company under the provisions of section 3;
"company" means a company as defined in the Companies Act, Cap 191 or in any other law as applicable to Vanuatu and includes a company incorporated outside Vanuatu and lawfully entitled to carry on business in or from within Vanuatu;
"Inspector" means the Inspector of Trust Companies appointed in accordance with section 7(1);
"licence" means a licence granted under section 3 or deemed to be so granted in accordance with that section;
"licensee" means any person holding a licence under the provisions of this Act;
"Minister" means the Minister responsible for commerce;
"officer" includes director, secretary or other servant of a company;
"trust business" means the business of acting as trustee, executor or administrator;
"trust company" means any company carrying on trust business.
PART II
LICENSING OF TRUST COMPANIES
LICENCE REQUIRED TO CARRY ON BUSINESS AS A TRUST COMPANY
(2) Any person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding VT50,000 for each day during which the offence continues.
APPLICATION SHALL BE MADE TO THE MINISTER
(2) Whenever he considers it to be in the public interest, the Minister may refuse to grant a licence and need not give any reason for so refusing.
(3) A licence shall not be granted to-
(a) a trust company whose head office is situated in Vanuatu unless the aggregate of its capital issued and paid up in cash and outstanding and its unimpaired reserves is not less than VT12,500,000;
(b) a trust company whose head office is situated outside Vanuatu unless the aggregate of its capital issued and paid up in cash and outstanding and its unimpaired reserves will be not less than VT50,000,000:
Provided that any deficiency in such aggregate of capital may be supplied by a guarantee under seal given by a holding or parent or other company approved by the Minister, such guarantee to provide expressly that its validity, interpretation and effect and the rights and obligations of the parties to it are governed exclusively by British law as applicable in Vanuatu and that the Supreme Court shall have jurisdiction therein:
And provided that the aggregate of capital of a company to which subsection (4) applies may be less than the amounts stipulated by this subsection as provided in the said subsection (4).
(4) A licence may be granted to a trust company which permits an aggregate of capital less than that stipulated in subsection (3) upon and subject to the condition that such trust company shall not solicit or receive funds by way of trade or business from persons or companies other than those which shall be specified in such licence and will not solicit or receive such funds from the public of Vanuatu.
(5) The Minister may make rules requiring every licensed trust company incorporated outside Vanuatu to maintain a specified minimum level of capital and reserves within Vanuatu as he may consider desirable, so however that the minimum shall be the same for all trust companies and shall not exceed that specified by any similar requirements with respect to licensed trust companies incorporated within Vanuatu.
(6) A licence shall not be granted to any trust company having either its head office or its registered office outside Vanuatu unless such trust company designates and notifies to the Minister -
(a) a principal office in Vanuatu;
(b) by name, one of its officers resident in Vanuatu who is to be the authorised agent of the trust company in Vanuatu; and
(c) by name, another of its officers resident in Vanuatu who, in the absence or inability to act of the officer named under paragraph (b), is to be the authorised agent of the trust company in Vanuatu.
(7) It shall be a condition of every licence granted to a trust company to which subsection (6) applies, that the trust company shall forthwith notify the Minister in writing of any change of -
(a) its principal office in Vanuatu; or
(b) either or both of the officers designated pursuant to subsection (6)(b) or (6)(c).
(8) It shall be a condition of every licence granted to a trust company that when and as often as any alteration is made in the memorandum or articles of association of such trust company or in any other instrument where under the said trust company was incorporated, that trust company shall forthwith give the Minister full particulars in writing of such alteration, verified by an affidavit or declaration sworn or, as the case may be, made by a senior officer of the trust company.
(9) The Minister may by order revoke any licence -
(a) if any term or condition to which such licence is subject has not been complied with;
(b) if the licensee has ceased to carry on trust business;
(c) if the licensee becomes bankrupt, goes into liquidation, is wound up or is otherwise dissolved; or
(d) in the circumstances and in the manner provided for in section 8.
SHARES AND SECURITIES NOT TO BE ISSUED OR TRANSFERRED WITHOUT APPROVAL OF THE MINISTER
Provided that the Minister may exempt any licensee from the provisions of this section subject to such terms and conditions, if any, as the Minister may deem necessary.
USE OF THE WORDS "TRUST COMPANY" AND SIMILAR WORDS RESTRICTED
(a) use or continue to use the words "trust", "trust company", "trust corporation" or any of their derivatives either in English, French or in any other language, in the description or title under which such person is carrying on business from within Vanuatu whether or not such business is carried on in Vanuatu:
Provided that nothing in this subsection shall apply to an association of trust companies or trust company employees, formed for the protection of their common interests;
(b) make or continue to make any representation in any billhead, letter, letterhead, circular, paper, notice, advertisement or in any other manner whatsoever that such person is carrying on trust business;
(c) in any manner whatsoever solicit trust business from the public.
(2) Except with the approval of the Minister, no company shall be registered, or continue to be registered, by a name which contains the words "trust", "trust company", "trust corporation" or any of their derivatives either in English, French or in any other language, in the description or title under which such company is carrying on business from within Vanuatu whether or not such business is carried on in Vanuatu.
(3) Before giving his approval under subsection (1) or subsection (2), the Minister may require of any person such references and such other information and particulars as he may consider necessary.
(4) Whenever he considers it to be in the public interest, the Minister may withdraw any approval given under subsection (1) or subsection (2) and need not give any reason therefor.
(5) The Minister may refuse to grant a licence to a trust company, or in the case of a trust company which is already in possession of a licence he may revoke such licence, if in his opinion such trust company is carrying on or intending to carry on trust business under a name which -
(a) is identical with that of any company, firm or business house whether within Vanuatu or not or which so nearly resembles any such name as to be likely or calculated to deceive; or
(b) is likely or calculated to suggest, falsely, the patronage of or connection with some person or authority whether within Vanuatu or not; or
(e) is likely or calculated to suggest, falsely, that such trust company has a special status in relation to or derived from any governmental or public authority within Vanuatu or has the official backing of or acts on behalf of any such authority or of any department or official thereof or is recognised in Vanuatu as a government or national trust company.
(6) Any person who contravenes the provisions of this section shall be guilty of an offence and liable on conviction to a fine not exceeding VT50,000 for each day during which the offence continues.
MINISTER MAY REQUIRE FINANCIAL STATEMENT OF LICENSEE AND OTHER INFORMATION
(a) the financial, statement of that licensee as at a date within the previous 15 months audited, at the expense of the licensee, by an auditor who shall be approved for the purpose by the Minister; and
(b) such other information relating to the licensee as may be so specified; and any person who fails to comply with the requirements of such a notice shall be guilty of an offence and liable on conviction to a fine not exceeding VT50,000 in respect of every day during which the offence continues; and if any information supplied to the Minister in accordance with such notice is false in any material particular, the licensee concerned shall be liable to a fine of VT500,000.
POWERS AND DUTIES OF INSPECTOR
(a) to maintain a general review of the activities of trust companies in Vanuatu;
(b) whenever he thinks fit or when so required by the Minister to examine in such manner as he thinks necessary the affairs or business of every licensee carrying on business in or from within Vanuatu for the purpose of satisfying himself that the provisions of this Act are being complied with and that the licensee is in a sound financial position, and to report to the Minister the results of every such examination;
(c) to examine and report on the several returns delivered to the Minister pursuant to section 6;
(d) to examine and make recommendations to the Minister with respect to applications for licences.
(3) For the purposes of his duties under subsection (2)(b), the Inspector may by notice in writing require any licensee to furnish to the Inspector in each year, not later than 4 months after the close of the financial year to which they relate, copies of the balance sheet and profit and loss account, duly audited and certified by an auditor approved by the Inspector, of the licensee and of any company holding any interest in the licensee.
(4) Subject to the provisions of section 9, the Inspector shall be entitled at all reason- able times -
(a) to have access to such books, records, vouchers, documents, cash and securities of any licensee;
(b) to call upon any officer of any licensee for such information or explanation; as the Inspector may reasonably require for the purpose of enabling him to perform his functions under this Act.
(5) The Inspector with the approval of the Minister may in writing authorise any other person to assist the Inspector in the performance of his functions under this Act.
(6) Any licensee who fails to comply with a requirement made pursuant to subsection (3) by the Inspector or any person authorised under subsection (5) shall be guilty of an offence and liable on conviction to a fine not exceeding VT50,000 in respect of each day during which the offence continues.
(7) Any person who fails to comply with any requirement made pursuant to subsection (4) by the Inspector or any person authorised under subsection (5) shall be guilty of an offence and liable on conviction to a fine not exceeding VT50,000 in respect of each day during which the offence continues; and if any information or explanation supplied pursuant to subsection (4) is false in any material particular, the licensee concerned shall be liable to a fine of VT500,000.
POWERS OF THE MINISTER
PRESERVATION OF SECRECY
(2) Every person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding VT100,000 or to imprisonment for a term not exceeding 6 months or to both such fine and imprisonment.
PROVISIONS FOR TRUST COMPANY ACTING AS
ASSETS OF TRUST COMPANY LIABLE FOR PROPER ADMINISTRATION
ADMINISTRATION BONDS
POWER TO ACT AS EXECUTOR OR ADMINISTRATOR
(a) by any person named as executors in a will who would be entitled to obtain probate thereof without reserving the right of any other person to apply for probate; or
(b) by any person entitled to obtain a grant of letters of administration with the will annexed; or
(c) by any person entitled to obtain letters of administration of the estate of a person who died intestate;
may apply to the court for and obtain a grant of probate of such will, of letters of administration with the will annexed or of letters of administration of such estate, as the case may be, and may do and perform all the acts and duties of an executor or administrator as fully and effectually as any other executor or administrator:
Provided that the power conferred by this section upon a trust company, which has been authorised in accordance with paragraph (a), shall not be exercisable if there is any direction of the testator in the will that the office of executor should not be delegated or that a trustee company should not act in the trusts of the will.
TRUST COMPANY MAY ACT IN OTHER CAPACITIES
MAKING OF DECLARATIONS, AFFIDAVITS AND OTHER DOCUMENTS
RESTRICTION ON VOLUNTARY LIQUIDATION
CONTRIBUTORY INVESTMENT
SETTLORS MAY APPOINT OWN LEGAL PRACTITIONERS
(2) Any legal practitioner conducting the legal business of an estate under the provisions of subsection (1) may be removed by the court upon the application of the trust company or of any person interested in such estate upon cause shown and the court may appoint a legal practitioner nominated by the trust company in his place.
FEES CHARGED BY TRUST COMPANIES
PART IV
GENERAL PROVISIONS
POWER OF SEARCH
(a) that there is reasonable ground for suspecting that an offence against this Act has been, is being or is about to be committed and that evidence of the commission or intended commission of the offence is to be found at any premises specified in the information, or in any vehicle, vessel or aircraft so specified; or
(b) that any books, records, vouchers, documents, cash or securities which ought to have been produced under section 7(4) and have not been produced are to be found at any such premises, or in any such vehicle, vessel or aircraft;
he may grant a search warrant authorising the Inspector or such person authorised under section 7(5) or any police officer together with any other person named in the warrant and any other police officers, to enter the premises specified in the information or, as the case may be, any premises upon which the vehicle, vessel or aircraft so specified may be, and the vehicle, vessel or aircraft, at any time within 1 month from the date of the warrant, and to search the premises or, as the case may be, the vehicle, vessel or aircraft.
(2) The person authorised by such warrant as aforesaid to search any premises of any vehicle, vessel or aircraft may search every person who is found in or whom he has reasonable grounds to believe to have recently left or to be about to enter those premises or that vehicle, vessel or aircraft, as the case may be, and may seize any books, records, vouchers, documents, cash or securities found in the premises or in the vehicle, vessel or aircraft which he has reasonable grounds for believing to be evidence of or to contain evidence of or to be relevant to the commission of any offence against this Act or any such books, records, vouchers, documents, cash or securities found in the premises or in the vehicle, vessel or aircraft which he has reasonable grounds for believing ought to have been produced under section 7(4):
Provided that no female person shall in pursuance of any warrant issued under this section be searched except by a female person.
(3) Where by virtue of this section a person has any power to enter any premises he may use such force as is reasonably necessary for the purpose of exercising that power.
(4) Every person who shall wilfully obstruct the Inspector or any other person in the exercise of any powers conferred on him by virtue of this section shall be guilty of an offence and liable on conviction to a fine not exceeding VT20,000 or to imprisonment for, a term not exceeding 3 months or to both such fine and imprisonment.
PROHIBITION ON PARTICIPATION ETC. BY TRUST COMPANY IN CERTAIN CORPORATE BODIES
(2) If any trust company or any person referred to in subsection (1) acts in contravention thereof, then the trust company and every shareholder, director and manager thereof shall be jointly and severally liable to pay over to the purchaser of any of the land referred to therein which has been purchased as a result of or in any way by means of that contravention the whole of the purchase price or the cash value or any other consideration paid or given for such purchase, unless the trust company, shareholder, director or manager establishes his dissociation from the contravention to the satisfaction of the Supreme Court.
RULES
(a) to prescribe the maximum fees referred to in section 18;
(b) generally for carrying the purposes or provisions of this Act into effect.
SAVING
FEE PAYABLE BY LICENSED TRUST COMPANY
(2) On or before each anniversary of the date on which a licence has been granted to a trust company that trust company shall, during the subsistence of that licence, pay to the Government a fee of VT200,000.
(3) Any licensed trust company which fails to pay the fee provided by this section shall, in addition to any other penalty under this Act for such failure, be guilty of an offence and liable on conviction to a fine not exceeding VT15,000 for each day during which such fee remains unpaid and every officer of the trust company who knowingly and wilfully authorises or permits such failure to pay the fee shall be liable to a like conviction and fine.
(4) The Minister shall publish annually in the Gazette the name of every trust company which has paid the fee provided by this section.
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SCHEDULE
Particulars to be furnished in writing by persons applying for a licence to carry on business as a trust company.
PART 1
Particulars to be furnished by every applicant
(a) the address of its principal office in Vanuatu;
(b) the name of one of its officers resident in Vanuatu who is to be the trust company's authorised agent in Vanuatu;
(c) the name of another of its officers resident in Vanuatu who, in the absence or inability to act of the officer named in subparagraph (b) of this paragraph, is to be the trust company's authorised agent in Vanuatu.
5. (1) Evidence that, before or at the time it commences business -
(a) in the case of a trust company whose head office is situated in Vanuatu, the aggregate of its capital issued and paid up in cash and outstanding and its unimpaired reserves will be not less than VT12,500,000;
(b) in the case of a trust company whose head office is situated outside Vanuatu, the aggregate of its capital issued and paid up and outstanding and its unimpaired reserves will be not less than VT50,000,000:
Provided that any deficiency in such aggregate of capital as aforesaid may be supplied by a guarantee under seal given by a holding or parent or other company approved by the Minister:
And provided that the aggregate of capital of a company to which paragraph 7 of Part 2 of the Schedule relates may be less than the amounts herein before stipulated as provided in the said paragraph 7.
(2) The guarantee herein before referred to shall expressly provide that its validity, its interpretation and effect and the rights and obligations of the parties to it are governed exclusively by British law as applicable in Vanuatu and that the Supreme Court shall have jurisdiction therein.
PART 2
Additional particulars to be furnished by applicants for a licence
(a) in the case of a company incorporated in Vanuatu, certified in accordance with the laws of Vanuatu;
(b) in the case of a company incorporated outside Vanuatu certified and authenticated under public seal of the country or place under the laws of which such company has been incorporated.
6. References, including one from a trust company.
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URL: http://www.paclii.org/vu/legis/consol_act1988/tca200