There is still trust property registered in the name of a deregistered company

On deregistration all property the company held on trust immediately before deregistration vests in the Commonwealth. ASIC may for and on behalf of the Commonwealth – but is not obliged to – perform all the duties and exercise all the powers of the Commonwealth as trustee in relation to any property held on trust by the Commonwealth.

References in the remainder of this information relate to ASIC acting on behalf of the Commonwealth.

What ASIC will and won't do with vested trust property

ASIC may approve applications for ASIC to:

  • transfer trust property to beneficiaries where the trust has been wound up.
    For more information on transferring trust property to beneficiaries, please contact the Property Law Group at property.law@asic.gov.au
  • transfer trust property to a new trustee when the alternative remedies outlined below are not available.

ASIC will not normally approve applications for ASIC to:

  • transfer trust property when the trustee was deregistered within the last few years
  • sell trust property (e.g. to pay creditors)
  • act on an ongoing basis as trustee in lieu of the deregistered company
  • apply to a court to have a new trustee appointed.

Alternative remedies you must try before you apply to ASIC

ASIC generally exercises its discretionary powers under the Act to deal with vested property as a last resort. You need to ensure the following alternative remedies are not available to you before you apply to ASIC for a transfer. The cost of alternative remedies by itself is not a sufficient basis for ASIC to exercise its powers to deal with property.

1. If the property is shares

If the property is shares and you have a holding statement clearly showing the shares are property of the trust, ASIC may – if it considers appropriate in the circumstances to do so – provide you with a letter for the share registry.

Please note there may be circumstances where ASIC does not consider it appropriate to provide a letter for the share registry. In those cases, the new trustee must either reinstate the company or, where ASIC reinstatement is not available, formally apply to ASIC for an executed transfer, which includes payment of the application fee and submission of a complete application.

To enable ASIC to provide you with a detailed reply as to what you need to do, please forward ALL the following documents to property.law@asic.gov.au:

  1. a recent holding statement (no more than 3 months old)
  2. a Commonwealth statutory declaration from a former officeholder of the company at the date of deregistration (Note: if the company underwent a liquidation, the statutory declaration must be from a former liquidator):
    1. stating the name of the trust
    2. identifying the shares (including the full SRN)
    3. confirming the company held the shares as trustee of the trust
    4. stating who the new trustee/s of the trust are
    5. confirming whether there is any other property of any type registered in the company's name, and if so, providing full details.

A template for a Commonwealth statutory declaration can be downloaded from the Australian Attorney-General's Department website.

2. If the property is land – request to titles office directly

ASIC is aware of the following legislative provisions which enable property to be vested in the new trustee:

  • QLD – section 109 of the Land Title Act 1994 (Qld) together with section 12 of the Trusts Act 1973 (Qld)
  • VIC – section 58 of the Transfer of Land Act 1958 (Vic)
  • WA – section 182 of the Transfer of Land Act 1893 (WA) or section 10 of the Trustees Act 1962 (WA) which deems the appointor to be the conveying party for the purpose of registration.

ASIC will not normally consider an application to transfer trust property except where the property is outside these States, as it exercises powers to deal with property as a last resort, where no other remedy is available. In any event, the above legislative provisions provide a cheaper and more convenient remedy for new trustees (than making an application to ASIC).

If the property is in WA, ASIC has no objection to you using section 10 of the Trustees Act 1962 (WA) which deems the appointor to be the conveying party for the purposes of registration.

If the property is in Qld, Vic or WA, then ASIC recommends you provide the relevant state land titles office a copy of the 'Deed of appointment of new trustee' and request it vest the property in the new trustee under the relevant provision (requirements for making such a request are usually available in their Practice Manual/Lodging Book).

ASIC on behalf of the Commonwealth has no objection to Titles Office Registrars exercising any of their powers to register property in another party's name, without ASIC's execution of a transfer. If required by the Titles Office, ASIC can provide you with a letter confirming its position (please email your request and a current title search of the property to property.law@asic.gov.au).

You may also refer the titles office to this webpage.

3. Reinstatement by ASIC

Before making an application for ASIC to deal with the property, you should ask via asic.gov.au/question if reinstatement of the company by ASIC is available. If it is then it will be more convenient and perhaps more cost-effective for you.

More information about reinstatement of the company by ASIC can be found here.

How to apply to ASIC for a transfer to new trustee

If the alternative remedies outlined above are not available to you (i.e. the property is land located outside of Queensland, Victoria or Western Australia and ASIC reinstatement is unavailable) then you may wish to apply to ASIC's Property Law Group for a transfer of the property to the new trustee/s.

Use this Checklist to prepare, and then submit, your application to ASIC:
Download PDF Checklist – Transfer of Property to New Trustee under s601AF (PDF 904 KB)

You will also need to complete this indemnity: Transfer to new trustee.

Instructions for submitting your application are contained in the Checklist.

How long will it take to assess your application

ASIC usually makes a decision within 60 days of receipt of all requested materials. You need to take this timeframe into account and if necessary, re-schedule any transactions (e.g. settlement dates) to include this 60 day period. Delays occur when incomplete applications are submitted.

Please allow at least 30 days before enquiring about the progress of your application.

Urgent applications

In certain situations, ASIC may consider applications on an urgent basis (i.e. within a specific and short timeframe). However, ASIC will only do so in exceptional circumstances because this would give the urgent application priority over other applications lodged in a more timely manner.

Applicants must therefore clearly demonstrate that the urgency results from factors beyond their reasonable control that they could not have reasonably foreseen. Settlement of a contract of sale is not a sufficient basis for urgent consideration.

Do you need legal representation

While ASIC receives many satisfactory applications from applicants directly, you may wish to consider seeking independent legal advice. ASIC is only able to provide you with guidelines on how to make the application.

More about the effect of deregistration

More about applications to ASIC to deal with deregistered company property

This is only a general guide as to ASIC's approach to the property and rights that pass to ASIC and the Commonwealth on deregistration of a company. This document does not represent legal advice and should not be interpreted as such. Each application or inquiry will be considered on its facts and decided on its individual merits, based on all the information available to ASIC at the time. We encourage you to seek your own professional advice to find out how the law applying to deregistered companies affects your individual circumstances.

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Last updated: 24/01/2013 12:00