New Zealand Legislation: Regulations
Regulations are laws made under Acts
2009/169
Rt Hon Dame Sian Elias, Administrator of the Government
At Wellington this 15th day of June 2009
Present:
The Hon John Key presiding in Council
Pursuant to section 52 of the Maori Trustee Act 1953, Her Excellency the Administrator of the Government, acting on the advice and with the consent of the Executive Council, and on the recommendation of the Minister of Māori Affairs, makes the following regulations.
These regulations are the Māori Trustee Regulations 2009.
These regulations come into force on 1 July 2009.
In these regulations, unless the context otherwise requires,—
estate means—
(a) the property that the Māori Trustee is entitled to administer—
(i) as executor or trustee under the will of a deceased Māori; or
(ii) as the administrator in the estate of a Māori dying intestate; or
(b) the property in respect of which the Māori Trustee is the trustee of a person under disability; or
(c) the property that the Māori Trustee is authorised to administer—
(i) under a duly executed power of attorney; or
(ii) as the trustee under a deed of trust or settlement duly executed by the parties entitled to create or make the deed of trust or settlement
person under disability has the meaning it is given in section 210 of Te Ture Whenua Maori Act 1993.
Compare: SR 1954/46 r 3
(1) The Māori Trustee may charge commission for the matters provided for in the Schedule.
(2) This regulation does not limit the application of section 48 of the Maori Trustee Act 1953.
Compare: SR 1954/46 r 4
(1) A fee of $7 (inclusive of goods and services tax) is payable by the Māori Trustee to the Registrar of the High Court for the filing of an election under section 12A or 12B of the Maori Trustee Act 1953.
(2) The sealing fee for a copy of an election certified as a correct copy under the seal of the High Court is $3 (inclusive of goods and services tax).
Compare: SR 1954/46 r 5
(1) In respect of the matters specified in subclause (2), the Māori Trustee may charge such reasonable fee (plus goods and services tax, if any) that the Māori Trustee considers appropriate in the circumstances, having regard to the nature of the work and the time involved.
(2) The matters are—
(a) conveyancing work undertaken by solicitors employed by the Māori Trustee:
(b) the execution or discharge of a memorial of charge by the Māori Trustee:
(c) the production of titles:
(d) the giving of consent by the Māori Trustee to any plan of subdivision:
(e) the giving of consent by the Māori Trustee as lessor or mortgagee in relation to leasehold transactions:
(f) the services of the Māori Trustee in clearing or otherwise putting in order the title to any land:
(g) the administration of any sinking fund created for the purposes of meeting compensation for improvements:
(h) the preparation and filing of any record relating to—
(i) the condition of any land subject to a lease; and
(ii) the particulars of any improvement made or to be made on that land.
(3) No fee is payable under subclause (2)(f) if the Māori Trustee is acting as the agent of the owners under Part 9 of Te Ture Whenua Maori Act 1993 in the sale of the land.
(4) Any fee charged under subclause (2)(g) may be charged only on the termination of the sinking fund.
(5) This regulation does not limit the application of section 48 of the Maori Trustee Act 1953.
Compare: SR 1954/46 r 5A
(1) The Māori Trustee may charge or retain a reasonable management fee (plus goods and services tax, if any) for the management of the funds held in trust in the Common Fund.
(2) Subclause (1) does not apply if, and to the extent that, the Māori Trustee is paid a commission or a fee under regulation 4 or 6 respectively for the management of the funds held in trust in the Common Fund.
(3) The management fee that may be charged under subclause (1) is to comprise—
(a) a base fee calculated monthly on the gross market value of the Common Fund on the last day of the month to which the calculation relates; and
(b) a supplementary fee to reimburse the Māori Trustee for expenses, costs, and liabilities incurred by the Māori Trustee in the relevant month in managing the funds held in trust in the Common Fund, to the extent that such expenses, costs, and liabilities are not covered by the base fee charged under paragraph (a).
(4) The management fee determined in accordance with subclause (3)—
(a) is a liability of the Common Fund as at the last day of the month to which the calculation relates; and
(b) must be paid from the Common Fund to the General Purposes Fund no later than the last day of the month following the month to which that calculation relates.
The distributable income that must be paid under section 26(2) of the Maori Trustee Act 1953 must be calculated as follows:
(a) the Māori Trustee must apply the formula set out in section 26(3) of the Maori Trustee Act 1953 each month to calculate the total amount of distributable income for the month to which the calculation relates; and
(b) the entitlement of an account in the Common Fund to a share of the total distributable income calculated under paragraph (a) must be determined each month—
(i) by reference to the balance of that account on the last day of the month; and
(ii) in the same proportion as that account contributes to the Common Fund as a whole on that day.
(1) On 1 April each year, the Māori Trustee must pay into each account in the Common Fund the aggregate of the monthly entitlements calculated under regulation 8 for the preceding 12 months, except to the extent that any part of the entitlement has been paid into an account during that time, as permitted by subclause (3).
(2) Despite subclause (1), on 1 April 2010, the Māori Trustee is required to pay into each account the aggregate monthly entitlements calculated under regulation 8 for the preceding 9 months.
(3) Subclauses (1) and (2) do not prevent the Māori Trustee from making payments of distributable income to particular account holders at other times that the Māori Trustee considers appropriate in all the circumstances.
(1) The Māori Trustee must report to the holders of an account in the Common Fund to disclose the following information for the financial year immediately prior to the report:
(a) the amount of the distributable income paid in respect of the holder's account; and
(b) the amount of the management fee charged or retained in relation to that account, as provided for by regulation 7; and
(c) the net amount of the distributable income paid by the Māori Trustee in total to all account holders in the year to which the report relates.
(2) The report must be made not later than 30 June in each year.
(3) The Māori Trustee may provide the report required under subclause (1) by electronic or other standard means that the Māori Trustee considers to be appropriate in the circumstances.
(4) If, after making reasonable inquiry, the Māori Trustee is unable to contact an account holder for the purpose of making the report required by this regulation, the Māori Trustee—
(a) is not obliged to report to that account holder; but
(b) must retain a summary of the information on that holder's account to enable appropriate disclosure to the account holder as soon as contact is able to be made with that account holder.
(5) This regulation does not prevent the Māori Trustee from including the report required by subclause (1) with any other information.
The Maori Trust Office Regulations 1954 (SR 1954/46) are revoked.
Schedule |
1 The Māori Trustee may charge commission in relation to the matters listed in the first column of the table, at the rate prescribed in the second column, subject to the provisions of clauses 2 to 6.
| Matters on which Māori Trustee may charge commission | Rate of commission | |||
|---|---|---|---|---|
| On the first $10,000: 3.75%: on the remainder: 2.5%. | |||
| (b) | gross value of real or personal property of an estate transferred, relinquished, or delivered in kind to, or retained by, a person entitled as a beneficiary, principal, or in any other capacity to that property, whether on the termination of a trust or agency or otherwise: | On the first $10,000: 3.75%: on the remainder: 2.5%. | ||
| (c) | capital sums received under a deed of trust or settlement where the capital is cash that the Māori Trustee— | |||
| 2% | |||
| On the first $10,000: 3.75%: on the remainder: 2.5%. | |||
| (d) | money transferred from the account kept by the Māori Trustee in respect of any estate to another account kept by the Māori Trustee (whether or not in respect of another estate): | 2% | ||
| (e) | money transferred to an account kept by the Māori Trustee in respect of an estate from any other account kept by the Māori Trustee (whether or not in respect of another estate): | 2% | ||
| (f) | money received as damages by way of compromise or otherwise under the Deaths by Accidents Compensation Act 1952 or for any other cause relating to personal injury— | |||
| 1% | |||
| 2.5% | |||
| (g) | the gross income of an estate from any source (if not provided for otherwise in this Schedule): | 5% | ||
| (h) | the gross proceeds of the sale of land or freehold interest in land: | 5% | ||
| (i) | the gross amount of any compensation received by the Māori Trustee in any capacity: | 5% | ||
| (j) | the gross rent from any land received by the Māori Trustee in any capacity: | 7.5% | ||
| (k) | the gross income from any business carried on by the Māori Trustee in relation to any land, or otherwise: | 5% | ||
| (l) | money arising from any business carried on by the Māori Trustee in relation to land and that is distributed or appropriated for payment to the persons beneficially entitled: | 5% | ||
| (m) | money (other than money for which commission is prescribed elsewhere in this Schedule) received by the Māori Trustee in any capacity for payment to the persons beneficially entitled: | 5% | ||
| (n) | money disposed of as unclaimed money by payment to the persons beneficially entitled or otherwise. | 10% | ||
2 The value mentioned in paragraphs (a) and (b) of the table in clause 1 is the value determined by the Māori Trustee.
3 Despite paragraph (g) of the table in clause 1, commission must not be charged by the Māori Trustee—
(a) on any part of the gross income of an estate under that paragraph if commission has been charged under paragraph (d) or (e):
(b) on interest earned by an estate from capital belonging to that estate in the Common Fund.
4 Despite paragraph (g) of the table in clause 1 and clause 3, the Māori Trustee may charge commission at the rate of 2% if—
(a) income has been collected on behalf of the Māori Trustee by a person duly authorised who has charged a commission for doing so; or
(b) income is derived from an estate not administered by the Māori Trustee and commission has been charged on that income before the income is passed to the Māori Trustee.
5 In relation to the matters provided for in paragraphs (h) and (i) of the table in clause 1, the commission is the same as that prescribed by paragraph (a) of the table in clause 1 if the Māori Trustee acts as—
(a) an administrator or trustee under Part 10 of the Maori Affairs Act 1953; or
(b) a manager under the Mental Health Act 1969 (as applied by section 41 of the Protection of Personal and Property Rights Act 1988).
6 The minimum commission that may be charged under paragraph (k) of the table in clause 1 is $300 a year.
7 The commission chargeable under this Schedule is exclusive of any goods and services tax payable on the commission.
Rebecca Kitteridge,
Clerk of the Executive Council.
This note is not part of the regulations, but is intended to indicate their general effect.
These regulations, which come into force on 1 July 2009, revoke and replace the Maori Trust Office Regulations 1954 (the 1954 Regulations). However, regulations 3 to 5A of the 1954 Regulations have not been reviewed. They are carried forward, as described below. Regulations 7 to 10 of the 1954 Regulations have been superseded by new provisions, reflecting the new structure set up for the Māori Trustee by the Māori Trustee Amendment Act 2009.
The new provisions support the requirement for the Māori Trustee to act independently in managing the funds held in the Common Fund for the benefit of the beneficial owners of the funds.
The new provisions are concerned with certain aspects of the management of the Common Fund. They apply to the process of calculating and paying the distributable income into the accounts that comprise the Common Fund; they do not affect the process of making payments out of accounts in the Common Fund, paying funds into individual accounts, or other functions. The new provisions are—
regulation 7, which provides for a reasonable management fee (plus goods and services tax, if any) to be charged by the Māori Trustee for activities relevant to the management of the funds held in the Common Fund and, to the extent that the Māori Trustee has charged a commission or fee in relation to such an activity, a management fee is not able to be charged in addition to any commission or other fee collected for the same activity:
regulation 8, which requires distributable income for each account to be calculated monthly on the balance held in each account on the last day of the month:
regulation 9, which provides for the apportionment of distributable income by requiring income to be paid into each account held in the Common Fund in the same proportion as each account contributes to that Fund; it also requires payments to be made on 1 April in each year, although it does not prevent payments being made at other times as well if the Māori Trustee considers that circumstances make that appropriate, for example, if an account holder wishes permanently to withdraw all the funds in the account at another time, the Māori Trustee may calculate and pay the distributable income relating to that account without waiting until 1 April; this regulation also provides transitionally for the first 9 months of operation after the Māori Trustee Amendment Act 2009 and these regulations come into force on 1 July 2009:
regulation 10, which sets out certain disclosure requirements, the time by which a report on the payment must be made to the holder of each account in the Common Fund, the discretion of the Māori Trustee as to the delivery of the report, and the obligations on the Māori Trustee in relation to account holders who cannot be contacted.
The provisions of the 1954 Regulations that have not been reviewed are being carried forward without change as to their scope and content, but drafting changes have been made to update certain cross-references, simplify their presentation, and better reflect current drafting style. The regulations replicating the regulations retained from the 1954 Regulations are—
regulation 3 (former regulation 3), which defines “estate”
:
regulation 4 and the Schedule (former regulation 4), which specify the matters for which the Māori Trustee may charge commission and the rate that applies in each case:
regulations 5 and 6 (former regulations 5 and 5A), which set out the fees payable by or to the Māori Trustee in relation to specified matters.
Date of notification in Gazette: 18 June 2009.
These regulations are administered by Te Puni Kōkiri.