PART I
PRELIMINARY
Short title
1.
This Act may be cited as the Business Trusts Act.
Interpretation
2.
In this Act, unless the context otherwise requires —
“accounting records”, in relation to a registered business trust,
includes such working papers and other documents as are
necessary to explain the methods and calculations by which
accounts of the registered business trust are made up;
“accounts” means profit and loss accounts, balance sheets and
cash flow statements, and includes notes (other than auditors’
reports or directors’ reports) attached to or intended to be read
with any of those profit and loss accounts, balance sheets or
cash flow statements;
“advocate and solicitor” means an advocate and solicitor of the
Supreme Court or a foreign lawyer as defined in section 2(1)
of the Legal Profession Act (Cap. 161);
[Act 10 of 2013 wef 18/04/2013]
“approved liquidator” has the same meaning as in section 4(1) of
the Companies Act (Cap. 50);
“audit committee”, in relation to a registered business trust,
means the audit committee of the trustee-manager of a
registered business trust established in accordance with
section 15;
“Authority” means the Monetary Authority of Singapore
established under section 3 of the Monetary Authority of
Singapore Act (Cap. 186);
“book” has the same meaning as in section 2(1) of the Securities
and Futures Act (Cap. 289);
“business”, in relation to a registered business trust, means the
business relating to the trust property of the registered
business trust and managed and operated by the trustee-manager
of the registered business trust in its capacity as
trustee-manager of the registered business trust;
“business trust” means —
(a) a trust that is established in respect of any property and
that has the following characteristics:
(i) the purpose or effect, or purported purpose or
effect, of the trust is to enable the unitholders
(whether by acquiring any right, interest, title or
benefit in the property or any part of the property
or otherwise) to participate in or receive profits,
income or other payments or returns arising from
the management of the property or management
or operation of a business;
(ii) the unitholders of the trust do not have day-to-day
control over the management of the property,
whether or not they have the right to be consulted
or to give directions in respect of such
management;
(iii) the property subject to the trust is managed as a
whole by a trustee or by another person on behalf
of the trustee;
(iv) the contributions of the unitholders and the
profits or income from which payments are to
be made to them are pooled; and
(v) either —
(A) the units in the trust that are issued are
exclusively or primarily non-redeemable;
or
(B) the trust invests only in real estate and real
estate-related assets specified by the
Authority in the Code on Collective
Investment Schemes referred to in
section 284 of the Securities and Futures
Act (Cap. 289) and is listed on a securities
exchange; or
(b) a class or description of trust that is declared by the
Authority, by notice published in the Gazette, to be a
business trust for the purposes of this Act,
but does not include the types of trusts specified in
the Schedule;
“company” has the same meaning as in section 4(1) of the
Companies Act (Cap. 50);
“corporation” has the same meaning as in section 4(1) of the
Companies Act;
“creditor”, in relation to a registered business trust, means a
creditor of the trustee-manager of the registered business trust
where the liability owing to such creditor was incurred by the
trustee-manager on behalf of the registered business trust;
“debenture” has the same meaning as in section 239(1) of the
Securities and Futures Act and, in relation to a registered
business trust, means a debenture issued by the trustee-manager
of the registered business trust in its capacity as
trustee-manager of the registered business trust;
“deed” means any deed which creates a trust or provides for the
governance of the affairs of the trust and the conduct of its
business and includes any instrument amending or affecting
the deed;
“derivative”, in relation to a unit in a business trust, means any
right or interest, whether legal or equitable, in the unit in the
business trust, by whatever name called, and includes any
option to acquire any such right or interest in the unit in the
business trust;
“director” has the same meaning as in section 4(1) of the
Companies Act (Cap. 50);
“document” has the same meaning as in section 4(1) of the
Companies Act;
“electronic communication” has the same meaning as in
section 4(1) of the Companies Act;
“exempt private company” has the same meaning as in
section 4(1) of the Companies Act;
“expert” has the same meaning as in section 4(1) of the
Companies Act;
“financial year”, in relation to a registered business trust, means
the period in respect of which any profit and loss account of
the registered business trust laid before unitholders of the
registered business trust in general meeting is made up,
whether that period is a year or not;
“liabilities”, in relation to a registered business trust, means the
liabilities incurred by the trustee-manager of the registered
business trust on behalf of the registered business trust;
“liquidator”, in relation to a registered business trust, means the
person appointed under section 48(1) to take responsibility for
winding up the registered business trust or the Official
Receiver when acting as liquidator of the registered business
trust;
“listing rules” has the same meaning as in section 2(1) of the
Securities and Futures Act (Cap. 289);
“officer” has the same meaning as in section 4(1) of the
Companies Act;
“Official Receiver” means the Official Assignee appointed under
the Bankruptcy Act (Cap. 20) and includes the deputy of any
such Official Assignee and any person appointed as Assistant
Official Assignee;
“profit or loss”, in relation to a registered business trust, means
the profit or loss resulting from operations of that registered
business trust;
“public accountant” means a person who is registered or deemed
to be registered under the Accountants Act (Cap. 2) as a
public accountant;
“registered business trust” means a business trust that is
registered by the Authority under section 4(1);
“related corporation” has the same meaning as in section 4(1) of
the Companies Act (Cap. 50);
“replacement trustee-manager” means a company that has
consented in writing to its election by the unitholders of a
registered business trust to replace the resigning trustee-manager
or temporary trustee-manager, as the case may be, of
the registered business trust;
“resigning trustee-manager” means the trustee-manager of a
registered business trust that, in accordance with this Act,
proposes to resign, is removed or has resigned from the
position of trustee-manager of the registered business trust;
“securities exchange” has the same meaning as in section 2(1) of
the Securities and Futures Act (Cap. 289);
[Deleted by Act 2 of 2009 wef 19/11/2012]
“substantial shareholder” means a person who has a substantial
shareholding in a company in accordance with section 81 of
the Companies Act;
“temporary trustee-manager” means a company that has been
appointed as the temporary trustee-manager of a registered
business trust under section 21;
“trust property”, in relation to a business trust, means all property
and rights of any kind whatsoever which are held on trust for
the unitholders of the business trust, in accordance with the
terms of the trust deed, including —
(a) contributions of money or any other assets to the
business trust;
(b) property that forms part of the assets of the business
trust under the provisions of this Act;
(c) property arising in relation to any contract, agreement or
arrangement entered into by or on behalf of the trustee in
its capacity as trustee of the business trust;
(d) property arising in relation to any claims or rights held
by or on behalf of the trustee in its capacity as trustee of
the business trust;
(e) proceeds from money borrowed or raised by the trustee
of the business trust for the purposes of the business
trust;
(f) property acquired, directly or indirectly, with the
contributions or money referred to in paragraph (a),
(b), (c), (d) or (e) or with the proceeds thereof; and
(g) profits, income and property derived, directly or
indirectly, from contributions, money or property
referred to in paragraph (a), (b), (c), (d) or (e);
“trustee-manager”, in relation to a registered business trust,
includes a replacement trustee-manager and temporary
trustee-manager;
“unit”, in relation to a business trust, means a share in the
beneficial ownership in the trust property of the business trust;
“unitholder” means a person who holds units in a business trust.
[Companies 1994 Ed., ss. 4, 81; SFA 2002 Ed., s. 2; Aust. Corp. 2001, s. 9]
PART II
REGISTRATION OF BUSINESS TRUSTS
Application for registration
3.—
(1) The proposed trustee-manager of a business trust may apply
for the registration of the business trust by lodging an application with
the Authority in such form and manner as the Authority may
prescribe.
(2) An application made under subsection (1) shall be
accompanied —
(a) by such information or record as the Authority may require;
and
(b) by a prescribed application fee which shall be non-refundable
and be paid in such manner as the Authority may specify.
Registration of business trusts
4.—
(1) The Authority may, upon an application lodged with it by
the proposed trustee-manager of a business trust in accordance with
section 3, register the business trust.
(2) The Authority may refuse an application to register a business
trust if —
(a) the Authority is not satisfied that the application lodged has
complied with section 3;
(b) the Authority is not satisfied that the proposed trustee-manager
of the business trust is a company and not an exempt
private company;
(c) the Authority is not satisfied that the proposed trustee-manager
does not carry on any business other than the
business of management and operation of the business trust in
respect of which the application has been lodged;
(d) the Authority is not satisfied that the proposed trustee-manager
has —
(i) complied with sections 14(1), 15(1), 28(1) and 30(1)
(as modified by subsection (6) or pursuant to
subsection (7)); and
(ii) satisfied any other criteria as the Authority may
prescribe;
(e) the proposed trustee-manager or any of its substantial
shareholders is in the course of being wound up or
otherwise dissolved, whether in Singapore or elsewhere;
(f) a receiver, a receiver and manager, a judicial manager or an
equivalent person has been appointed, whether in Singapore
or elsewhere, in relation to or in respect of any property of the
proposed trustee-manager or any of its substantial
shareholders;
(g) the proposed trustee-manager or any of its substantial
shareholders has, whether in Singapore or elsewhere,
entered into a compromise or scheme of arrangement with
its creditors, being a compromise or scheme of arrangement
that is still in operation;
(h) execution against the proposed trustee-manager or any of its
substantial shareholders in respect of a judgment debt has
been returned unsatisfied in whole or in part;
(i) the proposed trustee-manager or any of its substantial
shareholders or officers —
(i) has been convicted, whether in Singapore or
elsewhere, of an offence involving fraud or
dishonesty or the conviction for which involved a
finding that it or he acted fraudulently or dishonestly;
or
(ii) has been convicted of an offence under this Act; or
(j) the Authority is of the opinion that it would be contrary to the
public interest to register the business trust.
(3) Subject to subsection (4), the Authority shall not refuse an
application to register a business trust under subsection (1) without
giving the proposed trustee-manager of the business trust an
opportunity to be heard.
(4) The Authority may refuse an application to register a business
trust on any of the following grounds without giving the proposed
trustee-manager of the business trust an opportunity to be heard:
(a) the proposed trustee-manager is in the course of being wound
up or otherwise dissolved, whether in Singapore or elsewhere;
(b) a receiver, a receiver and manager, a judicial manager or an
equivalent person has been appointed, whether in Singapore
or elsewhere, in relation to or in respect of any property of the
proposed trustee-manager;
(c) the proposed trustee-manager has been convicted, whether in
Singapore or elsewhere, of an offence involving fraud or
dishonesty or the conviction for which involved a finding that
it had acted fraudulently or dishonestly.
(5) The proposed trustee-manager of any business trust who is
aggrieved by the refusal of the Authority to register the business trust
under subsection (2) may, within 30 days after he is notified of the
decision, appeal to the Minister whose decision shall be final.
(6) For the purpose of determining whether subsection (2) is
satisfied in relation to the business trust —
(a) references in Division 1 of Part III and Part IV to a registered
business trust shall be read as including a reference to the
business trust referred to in subsection (1); and
(b) references in Division 1 of Part III and Part IV to the trustee-manager
of the registered business trust shall be read as
including a reference to the proposed trustee-manager of the
business trust.
(7) The Authority may prescribe such other modifications to the
provisions of Division 1 of Part III and Part IVas may be necessary for
their proper application to a proposed trustee-manager of a business
trust that has not yet been registered under this Act.
Register and notification of change in particulars
5.—
(1) The Authority shall establish and maintain a register of
registered business trusts, and may prescribe the manner in which the
register is established or maintained, including the details or
particulars required to be entered in the register.
(2) Any person may, upon payment of such fee as may be
prescribed, inspect and take an extract from the register established
under subsection (1), and any such extract, certified by the Authority
to be a true copy, shall be admissible as evidence in any legal
proceedings.
(3) Where a change occurs in any matter in relation to a registered
business trust, particulars of which are required to be entered in the
register of registered business trusts under subsection (1), the trustee
manager of the registered business trust shall, not later than 14 days
after the occurrence of the change, furnish particulars of the change to
the Authority in the prescribed form and manner.
(4) Any trustee-manager of a registered business trust which
contravenes subsection (3) shall be guilty of an offence.
[FAA 2000 Ed., ss. 18, 63]
PART III
TRUSTEE-MANAGER
Division 1 — Responsibilities and powers
Trustee-manager to be company and not to carry on any other
business
6.—
(1) No person other than a company (not being an exempt
private company) shall act as the trustee-manager of a registered
business trust.
(2) The business of a registered business trust shall be managed and
operated only by the trustee-manager of the registered business trust.
(3) The trustee-manager of a registered business trust shall not carry
on any business other than the management and operation of the
registered business trust as its trustee-manager.
(4) Any person who contravenes subsection (1), (2) or (3) shall be
guilty of an offence and shall be liable on conviction to a fine not
exceeding $100,000 and, in the case of a continuing offence, to a
further fine not exceeding $10,000 for every day or part thereof during
which the offence continues after conviction.
Secretary
7.—
(1) The trustee-manager of a registered business trust shall
ensure that its secretary is a person who —
(a) for at least 3 years in the period of 5 years immediately
preceding his appointment as secretary, held the office of
secretary of a company or trustee-manager of a registered
business trust;
(b) is a qualified person under the Legal Profession Act
(Cap. 161), a public accountant, a member of the Singapore
Association of the Institute of Chartered Secretaries and
Administrators or a member of such other professional
association as may be prescribed; or
(c) is, by virtue of such academic or professional qualifications as
may be prescribed, capable of discharging the functions of
secretary of the trustee-manager.
(2) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence.
[Companies 1994 Ed., s. 171]
Trustee-manager to operate registered business trust and
power to appoint agents
8.—
(1) The trustee-manager of a registered business trust shall —
(a) manage and operate the registered business trust in
accordance with the provisions of this Act and the trust
deed of the registered business trust; and
(b) perform the functions conferred on it by the trust deed and the
provisions of this Act.
(2) Subject to the trust deed of a registered business trust, the
trustee-manager of the registered business trust shall have power to
appoint an agent to carry out or perform any matter that the trustee-
manager is authorised to carry out or perform in connection with the
management and operation of the registered business trust.
(3) Anagent referred to in subsection (2) may also, with the consent
of the trustee-manager of the registered business trust, appoint an
agent (referred to in this section as a sub‑agent) to carry out or perform
any matter that the agent has been appointed by the trustee-manager to
carry out or perform and, for the avoidance of doubt, the sub‑agent
shall be deemed to be an agent appointed by the trustee-manager to
carry out or perform that matter for the purposes of that subsection.
(4) Where anagent or a sub‑agent appointed under subsection (2) or
(3), as the case may be, is liable to indemnify the trustee-manager of
the registered business trust against any loss or damage suffered by the
trustee-manager as a result of the acts of the agent or sub‑agent, any
amount recovered under the indemnity shall form part of the trust
property of the registered business trust.
(5) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $100,000 and, in the case
of a continuing offence, to a further fine not exceeding $10,000 for
every day or part thereof during which the offence continues after
conviction.
[Aust. Corp. 2001, s. 601FB]
Use of information and advice
9.—
(1) Subjecttosubsection (2), the trustee-manager of a registered
business trust may, when exercising powers or performing duties as a
trustee-manager, rely on reports, statements, financial data and other
information prepared or supplied, and on professional or expert advice
given, by a professional adviser or an expert in relation to matters
which the trustee-manager believes on reasonable grounds to be
within the person’s professional or expert competence.
(2) Subsection (1) shall apply to the trustee-manager of a registered
business trust only if the trustee-manager —
(a) acts in good faith;
(b) makes proper inquiry where the need for inquiry is indicated
by the circumstances; and
(c) has no knowledge that such reliance is unwarranted.
[Companies 1994 Ed., s. 157C]
Duties of trustee-manager
10.—
(1) The trustee-manager of a registered business trust shall at
all times act honestly and exercise reasonable diligence in the
discharge of its duties as a trustee-manager in accordance with this Act
and the trust deed of the registered business trust.
(2) The trustee-manager of a registered business trust shall —
(a) act in the best interests of all the unitholders of the registered
business trust as a whole; and
(b) give priority to the interests of all the unitholders of the
registered business trust as a whole over its own interests in
the event of a conflict between the interests of all the
unitholders as a whole and its own interests.
(3) Thetrustee-manager of a registered business trust shall not make
improper use of any information acquired by virtue of its position as
trustee-manager to gain, directly or indirectly, an advantage for itself
or for any other person to the detriment of the unitholders of the
registered business trust.
(4) The trustee-manager of a registered business trust shall hold the
trust property of the registered business trust on trust for all the
unitholders of the registered business trust as a whole in accordance
with the terms of the trust deed.
(5) Any trustee-manager of a registered business trust which
contravenes subsection (1), (2), (3) or (4) —
(a) shall be liable to all the unitholders of the registered business
trust as a whole for any profit or financial gain directly or
indirectly made by it or any of its related corporations or for
any damage suffered by all the unitholders of the registered
business trust as a whole as a result of the contravention; and
(b) shall be guilty of an offence and shall be liable on conviction
to a fine not exceeding $100,000.
(6) The Authority may, by regulations, prescribe requirements on
the scope of the duties of the trustee-manager of a registered business
trust.
[Aust. Corp. 2001, s. 601FC]
Duties of directors, officers and agents of trustee-manager
11.—
(1) A director of the trustee-manager of a registered business
trust shall —
(a) act honestly and exercise reasonable diligence in the
discharge of the duties of his office and, in particular, shall
take all reasonable steps to ensure that the trustee-manager
discharges its duties under section 10(1) and (2); and
(b) give priority to the interests of all the unitholders of the
registered business trust as a whole over the interests of the
trustee-manager in the event of a conflict between the
interests of all the unitholders as a whole and the interests
of the trustee-manager.
(2) An officer or agent of the trustee-manager of a registered
business trust shall not make improper use of any information
acquired by virtue of his position as an officer or agent of the trustee-
manager to gain, directly or indirectly, an advantage for himself or for
any other person to the detriment of the unitholders of the registered
business trust.
(3) A duty of a director of the trustee-manager of a registered
business trust under subsection (1) shall override any conflicting duty
of such director under section 157 of the Companies Act (Cap. 50).
(4) Nocivil or criminal proceedings shall lie against a director of the
trustee-manager of a registered business trust for a breach of
section 157 of the Companies Act, any fiduciary duty or any other
duty under common law in relation to any act or omission to act if
such act or omission was required by subsection (1).
(5) A director, an officer or an agent of the trustee-manager of a
registered business trust who or which contravenes subsection (1)
or (2) —
(a) shall be liable to all the unitholders of the registered business
trust as a whole for any profit or financial gain directly or
indirectly made by him or it or the trustee-manager or any
related corporation of the trustee-manager or for any damage
suffered by all the unitholders of the registered business trust
as a whole as a result of the contravention; and
(b) shall be guilty of an offence and shall be liable on conviction
to a fine not exceeding $100,000 or to imprisonment for a
term not exceeding 2 years or to both.
(6) For the avoidance of doubt, no action or proceedings whatsoever
may be brought by or on behalf of all or any of the unitholders of a
registered business trust against a director of the trustee-manager of
that registered business trust for any breach or alleged breach of the
duties imposed by subsections (1) and (2), except to the extent and in
the manner provided for under sections 41 and 42.
(7) The Authority may, by regulations, prescribe requirements on
the scope of the duties of an officer or agent of the trustee-manager of
a registered business trust.
(8) In this section —
“agent” includes a banker, a solicitor or an auditor of the trustee-
manager and any person who at any time has been a banker, a
solicitor or an auditor of the trustee-manager;
“officer” includes a person who at any time has been an officer of
the trustee-manager.
[Companies 1994 Ed., s. 157; Aust. Corp. 2001, s. 601FD]
Disclosure of interests in transactions
12.—
(1) Subject to subsections (2) and (3), every director of the
trustee-manager of a registered business trust who is in any way,
whether directly or indirectly, interested in a transaction or proposed
transaction entered or to be entered into by the trustee-manager for or
on behalf of the registered business trust shall, as soon as practicable
after the relevant facts have come to his knowledge, declare the nature
of his interest at a meeting of the directors of the trustee-manager.
(2) The requirements of subsection (1) shall not apply in any case
where the interest of the director of the trustee-manager of a registered
business trust consists only of being a member or creditor of a
corporation which is interested in a transaction or proposed
transaction referred to in that subsection if the interest of the
director of the trustee-manager may properly be regarded as not
being a material interest.
(3) A director of the trustee-manager of a registered business trust
shall not be deemed to be interested or to have been at any time
interested in any transaction or proposed transaction referred to in
subsection (1) by reason only —
(a) in the case where the transaction or proposed transaction
relates to any loan to the trustee-manager — that that director
has guaranteed or joined in guaranteeing the repayment of the
loan or any part of the loan; or
(b) in the case where the transaction or proposed transaction has
been or will be made with or for the benefit of or on behalf of
a related corporation of the trustee-manager of the registered
business trust — that that director is a director of the related
corporation,
and this subsection shall have effect not only for the purposes of this
Act but also for the purposes of any other law, but shall not affect the
operation of any provision in the trust deed of the registered business
trust.
(4) For the purposes of subsection (1), a general notice given to the
directors of the trustee-manager of a registered business trust by a
director to the effect that he is an officer or a member of a specified
corporation or a member of a specified firm and is to be regarded as
interested in any transaction which may, after the date of the notice, be
made with that corporation or firm shall be deemed to be a sufficient
declaration of interest in relation to any transaction so made if it
specifies the nature and extent of his interest in the specified
corporation or firm and his interest is not different in nature or
greater in extent than the nature and extent so specified in the general
notice at the time any transaction is so made; but no such notice shall
be of effect unless either it is given at a meeting of the directors of the
trustee-manager or the director of the trustee-manager takes
reasonable steps to ensure that it is brought up and read at the next
meeting of the directors of the trustee-manager after it is given.
(5) Every director of the trustee-manager of a registered business
trust who holds anyoffice or possesses any property whereby, whether
directly or indirectly, duties or interests might be created in conflict
with the duties of the trustee-manager in relation to the registered
business trust, shall declare the fact and the nature, character and
extent of the conflict at a meeting of the directors of the trustee-
manager.
(6) The declaration referred to in subsection (5) shall be made at the
first meeting of the directors of the trustee-manager of a registered
business trust held —
(a) after he becomes a director; or
(b) if he is already a director of the trustee-manager, after he
commenced to hold the office or to possess the property,
as the case requires.
(7) The secretary of the trustee-manager of a registered business
trust shall record every declaration under this section in the minutes of
the meeting at which it was made.
(8) For the purposes of this section, an interest of a member of a
director’s family shall be treated as an interest of the director of the
trustee-manager of a registered business trust and the words “member
of a director’s family” shall include his spouse, son, adopted son, step-
son, daughter, adopted daughter and step-daughter.
(9) Subject to subsection (3), this section shall be in addition to and
not in derogation of the operation of any rule of law or any provision
in the trust deed restricting a director of the trustee-manager of a
registered business trust from having any interest in transactions with
the trustee-manager in its capacity as the trustee-manager of the
registered business trust or from holding offices or possessing
properties involving duties or interests in conflict with the duties of
the trustee-manager in relation to the registered business trust.
(10) A director of the trustee-manager of a registered business trust
whocontravenes subsection (1) or (5) shall be guilty of an offence and
shall be liable on conviction to a fine not exceeding $100,000 or to
imprisonment for a term not exceeding 2 years or to both and, in the
case of a continuing offence, to a further fine not exceeding $10,000
for every day or part thereof during which the offence continues after
conviction.
[Companies 1994 Ed., s. 156]
Disclosure of directors’ interests
13.—
(1) The trustee-manager of a registered business trust shall
keep a register showing with respect to each director of the trustee
manager particulars of —
(a) units or derivatives of units in the registered business trust,
being units or derivatives in which the director has an interest
and the nature and extent of that interest; and
(b) debentures of the registered business trust in which the
director has an interest and the nature and extent of that
interest.
(2) The trustee-manager of a registered business trust shall, within 3
days after receiving any notice from its director under subsection (8)
or section 137N(1) of the Securities and Futures Act (Cap. 289), enter
in its register in relation to the director the particulars in
subsection (1), including —
(a) the number and description of units or derivatives of units in a
registered business trust and debentures of a registered
business trust, in which the director has an interest;
(b) in respect of units or derivatives of units in a registered
business trust or debentures of a registered business trust,
acquired after he became a director —
(i) the price or other consideration for the transaction, if
any, by reason of which an entry is required to be made
under this subsection; and
(ii) the date of the agreement for the transaction and the
date of completion of the transaction; or where there
was no transaction, the date of the occurrence of the
event by reason of which an entry is required to be
made under this subsection; and
(c) particulars of any change in respect of the particulars referred
to in paragraphs (a) and (b), including the consideration, if
any, received as a result of the event giving rise to the change.
[2/2009 wef 19/11/2012]
(3) The trustee-manager of a registered business trust shall make the
register available for public inspection at the registered office of the
trustee-manager without charge.
(4) A person may request the trustee-manager of a registered
business trust to furnish him with a copy of its register or any part
thereof on payment in advance of a sumof$1orsuchlesser sumasthe
trustee-manager requires for every page or part thereof required to be
copied, and the trustee-manager shall send the copy to that person
within 21 days after the day on which the request is received by the
trustee-manager.
(5) The trustee-manager of a registered business trust shall, at the
direction of the Authority, send to the Authority within such time as
may be specified by the Authority a copy of its register or any part
thereof.
(6) The trustee-manager of a registered business trust shall produce
its register at the commencement of each annual general meeting of
the unitholders of the registered business trust and keep it open and
accessible during the meeting to all persons attending the meeting.
(7) It is a defence to a prosecution for failing to comply with
subsection (1) or (2) in respect of particulars relating to a director of
the trustee-manager of a registered business trust if the defendant
proves that the failure was due to the failure of the director to comply
with subsection (8) or (as the case may be) section 137N(1) of the
Securities and Futures Act (Cap. 289) with respect to those particulars.
[2/2009 wef 19/11/2012]
(8) In accordance with subsection (9), a director of the trustee
manager of a registered business trust shall give notice in writing to
the trustee-manager of —
(a) particulars relating to his units or derivatives of units in the
registered business trust, or debentures of the registered
business trust; and
(b) particulars of any change in respect of the particulars referred
to in paragraph (a),
as are necessary for the purposes of compliance by the trustee-
manager with subsections (1) and (2).
(9) A notice under subsection (8) shall be given —
(a) in the case of a notice under paragraph (a) of that subsection,
within 2 business days after —
(i) the date on which the director became a director of the
trustee-manager of a registered business trust; or
(ii) the date on which the director became a unitholder of
the registered business trust or acquired an interest in
the units or derivatives of units in the registered
business trust or debentures of the registered business
trust,
whichever last occurs; and
(b) in the case of a notice under paragraph (b) of that subsection,
within 2 business days after the occurrence of the event giving
rise to the change referred to in that paragraph.
(10) The trustee-manager of a registered business trust shall, within
7daysafter it receives a notice given under subsection (8), send a copy
of the notice to each of the other directors of the trustee-manager.
(11) It is a defence to a prosecution for failing to comply with
subsection (8)(a)or(b) or with subsection (9) if the defendant proves
that his failure was due to his not being aware of a fact or occurrence
the existence of which was necessary to constitute the offence and
that —
(a) he was not so aware on the date of the information or
summons; or
(b) he became so aware less than 2 days before the date of the
summons.
(12) For the purposes of subsection (11), a person shall conclusively
be presumed to have been aware at a particular time of a fact or
occurrence —
(a) of which he would, if he had acted with reasonable diligence
in the conduct of his affairs, have been aware at that time; or
(b) of which an employee or agent of the person, being an
employee or agent having duties or acting in relation to his
employer’s or principal’s interest in units or derivatives of
units in the registered business trust or debentures of the
registered business trust, was aware or would, if he had acted
with reasonable diligence in the conduct of his employer’sor
principal’s affairs, have been aware at that time.
(13) Where a person is required under subsection (8) to give notice
to the trustee-manager of a registered business trust that is listed on a
securities exchange, he shall also notify the securities exchange of that
matter within the same period, and the securities exchange may
publish, in such manner as it may determine, any information received
by it under this subsection.
(14) For the purposes of this section, a director of the trustee-
manager of a registered business trust is deemed to have an interest in
units or derivatives of units in the registered business trust or
debentures of the registered business trust, as the case may be, if that
director is deemed to have an interest in the units, derivatives of units
or debentures, as the case may be, under section 4 of the Securities and
Futures Act (Cap. 289).
(15) For the purposes of this section, an interest of a family member
of a director of the trustee-manager of a registered business trust shall
be treated as an interest of that director and the words “member of a
director’s family” shall include his spouse, son, adopted son, step-son,
daughter, adopted daughter and step-daughter.
(16) Any director of the trustee-manager of a registered business
trust who contravenes subsection (8) or (13) shall be guilty of an
offence and shall be liable on conviction to a fine not exceeding
$100,000 or to imprisonment for a term not exceeding 2 years or to
both and, in the case of a continuing offence, to a further fine not
exceeding $10,000 for every day or part thereof during which the
offence continues after conviction.
(17) Any trustee-manager of a registered business trust which
contravenes subsection (1), (2), (3), (4), (5), (6) or (10) shall be guilty
of an offence and shall be liable on conviction to a fine not exceeding
$25,000 and, in the case of a continuing offence, to a further fine not
exceeding $2,500 for every day or part thereof during which the
offence continues after conviction.
(18) Subsections (8) to (15) shall not apply in respect of a registered
business trust —
(a) all or any of the units of which are listed for quotation on the
official list of a securities exchange; and
(b) to which Subdivision (2) of Division 2 of Part VII of the
Securities and Futures Act (Cap. 289) applies.
[2/2009 wef 19/11/2012]
[Companies 1994 Ed., ss. 164, 165, 166]
Composition of board
14.—
(1) The trustee-manager of a registered business trust shall
ensure that the composition of its board of directors complies with
such requirements as may be prescribed by the Authority.
(2) Any trustee-manager of a registered business trust which
contravenes this section shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $100,000 and, in the case
of a continuing offence, to a further fine not exceeding $10,000 for
every day or part thereof during which the offence continues after
conviction.
Audit committees
15.—
(1) The trustee-manager of a registered business trust shall
establish an audit committee in accordance with such requirements as
may be prescribed by the Authority, including requirements in respect
of the composition of an audit committee.
(2) The audit committee and every member thereof shall comply
with such requirements as may be prescribed by the Authority,
including requirements in respect of the duties and functions of an
audit committee.
(3) Every director of the trustee-manager of a registered business
trust shall take all reasonable steps to secure compliance by the audit
committee of the trustee-manager and every member of the audit
committee, as the case may be, with subsection (2).
(4) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $100,000 and, in the case
of a continuing offence, to a further fine not exceeding $10,000 for
every day or part thereof during which the offence continues after
conviction.
(5) If any director of the trustee-manager of a registered business
trust —
(a) fails to take all reasonable steps to secure the compliance by
the audit committee of the trustee-manager or any member of
the audit committee with subsection (2); or
(b) has by his own wilful act been the cause of any contravention
of subsection (2) by the audit committee of the trustee-
manager or any member of the audit committee,
he shall be guilty of an offence and shall be liable on conviction to a
fine not exceeding $100,000 and, in the case of a continuing offence,
to a further fine not exceeding $10,000 for every day or part thereof
during which the offence continues after conviction.
[Companies 1994 Ed., s. 201B]
Acquisition of interest in registered business trust by trustee-
manager
16.—
(1) The trustee-manager of a registered business trust shall not
acquire or hold any unit or derivative of any unit in the registered
business trust unless it acquires or holds the unit or derivative —
(a) for not less than the consideration that would be payable if the
unit or derivative of the unit were acquired by another person;
and
(b) subject to terms and conditions that would not disadvantage
other unitholders of the registered business trust.
(2) No person shall aid, abet or assist the contravention of
subsection (1) by the trustee-manager of a registered business trust.
(3) Any person who contravenes this section shall be guilty of an
offence and shall be liable on conviction to a fine not exceeding
$100,000.
[Aust. Corp. 2001, s. 601FG]
Liquidator of trustee-manager entitled to exercise indemnity
rights
17.
If the trustee-manager of a registered business trust is being
wound up, is under judicial management or receivership or has
executed a deed of company arrangement that has not terminated —
(a) any provision of the trust deed of the registered business trust
or of another instrument which purports to deny the trustee-
manager a right to be indemnified out of the trust property of
the registered business trust that the trustee-manager would
have had if it were not being wound up, under judicial
management or receivership or if it had not executed a deed of
company arrangement, as the case may be, shall be void
against the liquidator, judicial manager or receiver of the
trustee-manager or the executor of the deed of company
arrangement, as the case may be; and
(b) any right of the trustee-manager to be indemnified out of the
trust property of the registered business trust shall be
exercised by the liquidator, judicial manager or receiver of
the trustee-manager or the executor of the deed of company
arrangement, as the case may be.
[Aust. Corp. 2001, s. 601FH]
Division 2 — Change of trustee-manager
Changes to take effect upon date of appointment
18.—
(1) Notwithstanding any provision in this Division, a person
named as the trustee-manager of a registered business trust in the
register which is maintained by the Authority in accordance with
section 5 shall remain the trustee-manager or temporary trustee-
manager, as the case may be, until another person is appointed —
(a) by the unitholders of the registered business trust to be the
trustee-manager of the registered business trust; or
(b) by the court under section 21(1) to be the temporary trustee-
manager of the registered business trust,
and such appointment shall be effective from the date stated in the
resolution of the unitholders or court order as the effective date of the
appointment of the trustee-manager or temporary trustee-manager, as
the case may be.
(2) Any purported change of the trustee-manager of the registered
business trust is ineffective unless it is made in accordance with this
Division.
Resignation of trustee-manager
19.—
(1) The trustee-manager of a registered business trust may
resign from its position as trustee-manager only in accordance with
such requirements and in such manner as the Authority may prescribe.
(2) The trustee-manager of a registered business trust shall, until its
resignation in accordance with subsection (1) becomes effective,
continue to observe, and be liable for the failure to observe, the duties
and responsibilities assigned to it under this Act and the trust deed of
the registered business trust.
(3) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence.
[Aust. Corp. 2001, s. 601FL]
Removal of trustee-manager by unitholders
20.
The trustee-manager of a registered business trust may be
removed as the trustee-manager by the unitholders of the registered
business trust only —
(a) if a resolution to remove the trustee-manager is approved by
unitholders of the registered business trust holding in the
aggregate not less than three-fourths of the voting rights of all
the unitholders of the registered business trust who, being
entitled to do so, vote in person or where proxies are allowed,
by proxy present at a meeting of the unitholders of the
registered business trust; and
(b) in accordance with such procedures as the Authority may
prescribe.
[Aust. Corp. 2001, s. 601FM]
Appointment of temporary trustee-manager by court
21.—
(1) On an application by the Authority or the trustee-manager
or a unitholder of a registered business trust, the court may, by order,
appoint a company that has consented in writing to serve as a
temporary trustee-manager to be the temporary trustee-manager of the
registered business trust for a period of 3 months if the court is
satisfied that the appointment is in the interest of the unitholders of the
registered business trust.
(2) The company that is appointed by the court under subsection (1)
to act as the temporary trustee-manager of a registered business trust
shall comply with the duties, obligations and such other requirements
imposed under this Act and as may be prescribed by the Authority
with respect to the trustee-manager of a registered business trust.
(3) Notwithstanding subsection (2), the court may exempt the
temporary trustee-manager of a registered business trust, as it deems
appropriate, from sections 6, 14 and 15.
(4) The court may make such further orders in respect of the
appointment of a temporary trustee-manager under subsection (1) as it
thinks necessary for the protection of the interests of the unitholders of
the registered business trust, including an order for the reimbursement
of the costs of the application out of the trust property of the registered
business trust to the person who made the application under that
subsection.
(5) Upon the making of an order by the court appointing a company
as the temporary trustee-manager of a registered business trust, the
resigning trustee-manager of the registered business trust and that
appointed temporary trustee-manager shall comply with such
requirements as the Authority may prescribe.
(6) Any trustee-manager of a registered business trust which
contravenes subsection (5) shall be guilty of an offence.
[Aust. Corp. 2001, ss. 601FN, 601 FP]
Temporary trustee-manager to take steps for appointment of
new trustee-manager
22.—
(1) The temporary trustee-manager of a registered business
trust shall, within such time and in accordance with such requirements
as may be prescribed by the Authority, take such steps to enable the
unitholders of the registered business trust to appoint another person
as the trustee-manager (not being a temporary trustee-manager) of the
registered business trust.
(2) Any temporary trustee-manager of a registered business trust
which contravenes subsection (1) shall be guilty of an offence.
[Aust. Corp. 2001, s. 601FQ]
Division 3 — Consequences of change of trustee-manager
Resigning trustee-manager to hand over books and provide
reasonable assistance
23.—
(1) The resigning trustee-manager of a registered business
trust shall, as soon as practicable after the appointment of the
replacement trustee-manager or the temporary trustee-manager, as the
case may be, of the registered business trust —
(a) give the replacement trustee-manager or temporary trustee-
manager, as the case may be, any books which are in the
possession or control of the resigning trustee-manager and
which this Act or the trust deed of the registered business trust
requires to be kept in relation to the registered business trust;
and
(b) give reasonable assistance to the replacement trustee-manager
or temporary trustee-manager, as the case may be, to facilitate
the change of trustee-manager of the registered business trust.
(2) Any person who contravenes this section shall be guilty of an
offence and shall be liable on conviction to a fine not exceeding
$50,000 and, in the case of a continuing offence, to a further fine not
exceeding $5,000 for every day or part thereof during which the
offence continues after conviction.
[Aust. Corp. 2001, s. 601FR]
Rights, obligations and liabilities of resigning trustee-manager
24.—
(1) Any —
(a) legal right in, title to and interest under any trust property of a
registered business trust owned, leased, held or used by a
resigning trustee-manager for or on behalf of the registered
business trust; and
(b) obligations and liabilities of the resigning trustee-manager
undertaken for or on behalf of the registered business trust,
shall be transferred to and vested in, and assumed by, the replacement
trustee-manager or the temporary trustee-manager of the registered
business trust to be held for or on behalf of the registered business
trust from the effective date of appointment of the replacement trustee-
manager or temporary trustee-manager, as the case may be.
(2) Notwithstanding subsection (1), the following rights, obligations
and liabilities shall remain the rights, obligations and liabilities of the
resigning trustee-manager of a registered business trust:
(a) any right of the resigning trustee-manager to be paid fees for
the performance of its functions before it ceased to be the
trustee-manager of the registered business trust;
(b) any right of the resigning trustee-manager to be indemnified
for expenses it had incurred before it ceased to be the trustee-
manager of the registered business trust;
(c) any right, obligation or liability that the resigning trustee-
manager had or continues to have as a unitholder of the
registered business trust; and
(d) any liability in respect of which the resigning trustee-manager
would have had no claim of indemnification out of the trust
property of the registered business trust if it had remained the
trustee-manager of the registered business trust.
[Aust. Corp. 2001, s. 601FS]
Effect of change of trustee-manager on documents, etc., to
which resigning trustee-manager is a party
25.—
(1) Any document or agreement entered into by the resigning
trustee-manager of a registered business trust on behalf of the
registered business trust —
(a) to which the resigning trustee-manager is a party, in which a
reference is made to the resigning trustee-manager or under
which the resigning trustee-manager has acquired or incurred
any right, obligation or liability or might have acquired or
incurred any right, obligation or liability if it had remained the
trustee-manager of the registered business trust; and
(b) that is capable of having effect after the appointment of the
replacement trustee-manager or the temporary trustee-
manager of the registered business trust, as the case may be,
shall, from the effective date of appointment of the replacement
trustee-manager or temporary trustee-manager under section 18, as the
case may be, have effect as if the replacement trustee-manager or
temporary trustee-manager, as the case may be, (and not the resigning
trustee-manager) were a party to it, were referred to in it or had or
might have acquired or incurred the right, obligation or liability under
it.
(2) Subsection (1) shall not apply to any right, obligation or liability
that remains the right, obligation or liability of the resigning trustee-
manager by virtue of section 24(2).
[Aust. Corp. 2001, s. 601FT]
Division 4 — Written directions
Power of Authority to issue directions to trustee-manager or
temporary trustee-manager
26.—
(1) The Authority may —
(a) for the purpose of ensuring compliance with the provisions of
this Act; or
(b) if it thinks it necessary in the public interest for the proper
administration of this Act,
issue written directions, either of a general or specific nature, to the
trustee-manager or temporary trustee-manager of a registered business
trust.
(2) Without prejudice to the generality of subsection (1), the
Authority may issue written directions —
(a) where the trustee-manager or temporary trustee-manager of a
registered business trust is contravening, is likely to
contravene or has contravened any provision of this Act, to
require that person —
(i) to comply with that provision or to cease contravention
of that provision; or
(ii) to resign as trustee-manager of the registered business
trust; or
(b) with respect to any other matter which the Authority
considers necessary for the proper administration of this Act,
and the trustee-manager or temporary trustee-manager shall comply
with any such directions.
(3) The Authority may at any time vary, rescind or revoke any
written direction issued under this section.
(4) Any trustee-manager or temporary trustee-manager of a
registered business trust which contravenes any written direction
issued under this section shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $50,000 and, in the case of
a continuing offence, to a further fine not exceeding $5,000 for every
day or part thereof during which the offence continues after
conviction.
(5) It shall not be necessary to publish any written direction issued
under this section in the Gazette. [Act 10 of 2013 wef 18/04/2013]
Division 5 — Indemnification
Provisions indemnifying officers of trustee-manager and
auditors of registered business trust
27.—
(1) Except as otherwise provided in this Act, any provision
(whether in the trust deed of a registered business trust, in any contract
entered into by the trustee-manager of a registered business trust or its
officer or auditor or whenever and however arising) that exempts any
officer of the trustee-manager or auditor of the registered business
trust from, or indemnifies such officer or auditor against, any liability
which by law would otherwise attach to such officer or auditor in
respect of any negligence, default, breach of duty or breach of trust of
which such officer or auditor may be guilty in relation to the registered
business trust shall be void.
(2) This section shall not prevent the trustee-manager of a registered
business trust —
(a) from purchasing and maintaining for such officer insurance
against any liability referred to in subsection (1); or
(b) from indemnifying such officer or auditor against any liability
incurred by such officer or auditor —
(i) in defending any proceedings (whether civil or
criminal) in which judgment is given in his favour or
in which he is acquitted; or
(ii) in connection with any application in which relief is
granted to him by the court.
[Companies 1994 Ed., s. 172]
PART IV
TRUST DEED
Contents of trust deed
28.—
(1) The trustee-manager of a registered business trust shall
make provision in the trust deed of the registered business trust —
(a) relating to such particulars as are sufficient to define the scope
of business of the registered business trust and disclose the
structure of, and the nature of the units in, the registered
business trust;
(b) for the powers of the trustee-manager in relation to managing
and operating the business of the registered business trust;
(c) in respect of the duration, if ascertainable, of the registered
business trust or, if the duration is not ascertainable, a
statement of that fact;
(d) for the conditions governing the transfer of units in the
registered business trust;
(e) specifying the full particulars of —
(i) the remuneration of the trustee-manager of the
registered business trust and the manner in which
that remuneration is provided for; and
(ii) any other fees or charges payable out of the trust
property of the registered business trust;
(f) relating to the procedure for the winding up of the registered
business trust, which procedure shall not be in conflict with
any provision in Part VII and, in the case of any such conflict,
the provisions in Part VII shall prevail; and
(g) in respect of such other matters as may be prescribed by the
Authority.
(2) The trustee-manager of a registered business trust shall not have
any right to be paid fees or to claim indemnification for debts,
expenses or other liabilities incurred by the trustee-manager on behalf
of the registered business trust out of the trust property of the
registered business trust, and any agreement, arrangement or any
provision in the trust deed of the registered business trust that purports
to confer such a right shall be of no effect, unless such right to fees or
indemnification has been conferred on the trustee-manager by the
trust deed of the registered business trust.
(3) No contract or arrangement purporting to restrict or remove the
entitlement of the trustee-manager of a registered business trust to be
indemnified out of the trust property of the registered business trust as
conferred on the trustee-manager by the trust deed of the registered
business trust shall have any effect.
(4) The trustee-manager of a registered business trust shall not have
any power to borrow or raise money, to issue debentures of the
registered business trust or to assume (whether by way of declaration
of trust, transfer, novation, vesting or otherwise) obligations or
liabilities for such borrowings or issuance of debentures of the
registered business trust on behalf of the registered business trust,
unless such power is provided in the trust deed of the registered
business trust, and any agreement or arrangement that purports to
confer such power shall have no effect.
(5) The unitholders of a registered business trust shall not have a
right to redeem their units in return for distributions of profits, income
or other payments or returns from the trust property of the registered
business trust, unless the trust deed of the registered business trust —
(a) confers such right; and
(b) sets out procedures relating to the making and handling of
redemption orders which are fair to all the unitholders of the
registered business trust.
(6) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $100,000 and, in the case
of a continuing offence, to a further fine not exceeding $10,000 for
every day or part thereof during which the offence continues after
conviction.
[SF (Offers of Investments) (Collective Investment Schemes) (Rg 2), r. 9; Aust. Corp. 2001, s. 601GA]
Liability of trustee-managers
29.—
(1) Subject to subsection (2), any provision in a trust deed of a
registered business trust required under section 28 or in any contract
with the unitholders of a registered business trust to which such a trust
deed relates shall be void in so far as it would have the effect of
exempting the trustee-manager of the registered business trust under
the trust deed from, or indemnifying the trustee-manager against,
liability for breach of trust where the trustee-manager fails to exercise
the degree of care and diligence required of a trustee-manager of a
registered business trust.
(2) Subsection (1) shall not invalidate —
(a) any release otherwise validly given in respect of anything
done or omitted to be done by the trustee-manager of a
registered business trust before the giving of the release; or
(b) any provision enabling such a release to be given —
(i) on the passing of a special resolution by the
unitholders of the registered business trust at a
general meeting convened in accordance with
Division 1 of Part IX; and
(ii) either with respect to specific acts or omissions, or
upon the trustee-manager of a registered business trust
ceasing to act.
[SFA 2002 Ed., s. 292]
Trust deed to be legally enforceable
30.—
(1) The trustee-manager of a registered business trust shall
ensure that the trust deed of the registered business trust is contained
in a document that is legally enforceable as between the unitholders of
the registered business trust and the trustee-manager.
(2) The unenforceability of the trust deed of a registered business
trust shall not operate so as to avoid or affect any agreement,
transaction or arrangement entered into by the trustee-manager on
behalf of the trust, whether the agreement, transaction or arrangement
was entered into before or after the point in time when the trust deed
became unenforceable.
(3) The trustee-manager of a registered business trust shall make a
copy of the trust deed available to the public without charge.
(4) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $100,000 and, in the case
of a continuing offence, to a further fine not exceeding $10,000 for
every day or part thereof during which the offence continues after
conviction.
(5) Any trustee-manager of a registered business trust which
contravenes subsection (3) shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $25,000 and, in the case of
a continuing offence, to a further fine not exceeding $2,500 for every
day or part thereof during which the offence continues after
conviction.
[Aust. Corp. 2001, s. 601GB]
Change of trust deed
31.—
(1) No person shall modify or replace the trust deed of a
registered business trust unless such modification or replacement is
approved —
(a) by special resolution of the unitholders of the registered
business trust; or
(b) where the modification is necessary in order to comply with
any written law or rule of law applicable in Singapore, by the
trustee-manager of the registered business trust.
(2) Notwithstanding subsection (1), any modification or
replacement of the trust deed of a registered business trust shall be
void if such modification or replacement would result in a breach of
section 28(1) by the trustee-manager of the registered business trust.
(3) Subject to subsection (4), where the trustee-manager of a
registered business trust is aggrieved by a modification or replacement
of the trust deed of the registered business trust made pursuant to
subsection (1)(a), the trustee-manager may apply to the court for a
cancellation of the modification or replacement within 21 days after
the date on which the resolution of the unitholders referred to in
subsection (1)(a) was passed.
(4) On an application made by the trustee-manager of a registered
business trust under subsection (3), the court —
(a) shall have regard to whether the provisions of this Act have
been complied with and whether the unitholders that
approved the modification or replacement have acted in
good faith in doing so; and
(b) may make an order cancelling the modification or
replacement or confirming the modification or replacement
subject to such alterations or conditions as it thinks just,
and such modification or replacement, as the case may be, shall take
effect on the date of the order of the court.
(5) Where the trustee-manager of a registered business trust
proposes to the unitholders of the registered business trust to act by
special resolution to effect a revision to the fees or charges payable out
of trust property of the registered business trust to the trustee-manager,
the trustee-manager shall include in the notice to the unitholders
required under section 63 for such resolution to be considered a
special resolution —
(a) the rationale or justification for the proposed revision to the
fees or charges;
(b) the methods or procedures for determining the proposed
revision to the fees or charges; and
(c) an opinion, from an independent adviser, on whether the
methods or procedures for determining the proposed revision
to the fees or charges are sufficient to ensure that the proposed
revision is on normal commercial terms and will not be
prejudicial to the interests of all the unitholders as a whole.
(6) The trustee-manager of a registered business trust shall give
notice of the modification or replacement of the trust deed of a
registered business trust referred to in subsection (1)(b) to all the
unitholders of the registered business trust within 7 days from the
modification or replacement of the trust deed.
(7) The trustee-manager of a registered business trust shall lodge
with the Authority —
(a) a copy of the provisions in the trust deed of the registered
business trust that have been modified or replaced in
accordance with subsection (1) or a copy of the new trust
deed (incorporating such modification or replacement) within
2 business days after the modification or replacement referred
to in that subsection takes effect; and
(b) where an application for the cancellation of the modification
or replacement referred to in subsection (3) has been made —
(i) a copy of such application within 2 business days after
the application has been made; and
(ii) a copy of the court order referred to in
subsection (4)(b) within 7 days after that order has
been made.
(8) The trustee-manager of a registered business trust shall, at the
direction of the Authority, lodge with the Authority a copy of the
amended trust deed of the registered business trust after incorporating
all the amendments prior to the date of lodgment.
(9) The trustee-manager of a registered business trust shall make an
updated copy of the trust deed available to the public without charge.
(10) The trustee-manager of a registered business trust shall, at the
request of any unitholder of the registered business trust, provide an
updated copy of the trust deed to that unitholder without charge.
(11) Any person who contravenes subsection (1) shall be guilty of
an offence and shall be liable on conviction to a fine not exceeding
$100,000.
(12) Any trustee-manager of a registered business trust which
contravenes subsection (5) or (6) shall be guilty of an offence.
(13) Any trustee-manager of a registered business trust which
contravenes subsection (7), (8), (9) or (10) shall be guilty of an offence
and shall be liable on conviction to a fine not exceeding $25,000 and,
in the case of a continuing offence, to a further fine not exceeding
$2,500 for every day or part thereof during which the offence
continues after conviction.
[Aust. Corp. 2001, s. 601GC]
PART V
UNITHOLDERS
Limitation of liability of unitholders
32.—
(1) For the avoidance of doubt, a unitholder of a registered
business trust shall not be liable to contribute to the registered
business trust or in respect of any debts, liabilities or obligations
incurred by the trustee-manager in its capacity as trustee-manager for
the registered business trust, other than such outstanding amounts of
money, if any, which the unitholder has expressly agreed to contribute
to the registered business trust.
(2) The limitation of the liability of a unitholder of a registered
business trust referred to in subsection (1) shall apply
notwithstanding —
(a) any provision to the contrary in the trust deed of the registered
business trust; or
(b) the winding up of the registered business trust.
Distributions to unitholders
33.—
(1) The trustee-manager of a registered business trust shall
have the right to declare a distribution of profits, income or other
payments or returns to the unitholders of the registered business trust
out of the trust property of the registered business trust; but such
distribution shall only be made if the board of directors of the trustee-
manager makes a written statement, in accordance with a resolution of
the board of directors of the trustee-manager and signed by not less
than 2 of the directors, that the board of directors is satisfied on
reasonable grounds that, immediately after making the distribution,
the trustee-manager will be able to fulfil, from the trust property of the
registered business trust, the liabilities of the registered business trust
as these liabilities fall due.
(2) Upon the declaration by the trustee-manager of a registered
business trust to make a distribution of profits, income or other
payments or returns from the trust property of the registered business
trust to the unitholders of the registered business trust in accordance
with subsection (1), the trustee-manager shall —
(a) send to all the unitholders of the registered business trust —
(i) a copy of the written statement of the board of directors
referred to in subsection (1);
(ii) a written statement disclosing the distribution policy
and the measures and assumptions for deriving the
amount available to be distributed from the trust
property; and
(iii) a written statement containing such other information
as the Authority may prescribe or specify;
(b) give notice of the declaration of the distribution of profits,
income or other payments or returns from the trust property of
the registered business trust to the unitholders in one or more
newspapers circulating in Singapore; and
(c) make available a copy of each of the statements referred to in
paragraph (a) to the public without charge.
(3) Any trustee-manager of a registered business trust which
contravenes subsection (1) or (2) shall be guilty of an offence.
(4) If the board of directors of the trustee-manager of a registered
business trust makes a written statement referred to in subsection (1)
without any reasonable basis for arriving at the conclusions set out in
the written statement, any director of the trustee-manager who permits
or authorises the written statement to be made shall be guilty of an
offence and shall be liable on conviction to a fine not exceeding
$100,000 or to imprisonment for a term not exceeding 2 years or to
both.
Creditors of unitholders to have no rights to obtain possession
of trust property
34.
No creditor of a unitholder of a registered business trust shall
have any right to obtain possession of, or otherwise exercise any legal
or equitable remedy with respect to, the trust property of the registered
business trust.
[Delaware Stat. Trust, s. 3805 (b)]
Rights of unitholders to distribution
35.—
(1) Upon the declaration by the trustee-manager of a registered
business trust of a distribution of profits, income or other payments or
returns out of the trust property of the registered business trust to the
unitholders of the registered business trust, each unitholder shall, after
the date on which the distribution is payable, become entitled to
receive the distribution, and upon such declaration, the unitholder
shall be deemed to be, and is entitled to all legal and equitable
remedies available to, a creditor of the registered business trust, with
recourse to the trust property out of which the distribution is to be
made.
(2) The trust deed of a registered business trust may provide for the
establishment of book closure dates with respect to distributions of
profits, income or other payments or returns by the trustee-manager of
the registered business trust.
[Delaware Stat. Trust, s. 3805 (c)]
Approval of unitholders required for issue of units by trustee-
manager
36.—
(1) Notwithstanding anything in the trust deed of a registered
business trust, the trustee-manager of the registered business trust
shall not, without the prior approval of a majority of the number of
votes of the unitholders of the registered business trust who, being
entitled to do so, vote in person or, where proxies are allowed, by
proxy present at a general meeting which is convened in accordance
with the requirements under Division 1 of Part IX, exercise any power
to issue units in the registered business trust or to make or grant an
offer, agreement or option which would or might require units in the
registered business trust to be issued.
(2) Approval for the purposes of this section may be confined to a
particular exercise of that power or may apply to the exercise of that
power generally, and any such approval may be unconditional or
subject to conditions.
(3) Any approval for the purposes of this section shall continue in
force until —
(a) the conclusion of the annual general meeting of the registered
business trust commencing next after the date on which the
approval was given; or
(b) the expiration of the period within which the next annual
general meeting of the registered business trust after that date
is required under section 53 to be held,
whichever is the earlier, but any approval may be previously revoked
or varied by the unitholders of the registered business trust in general
meeting.
(4) The trustee-manager of a registered business trust may issue
units in the registered business trust notwithstanding that an approval
for the purposes of this section has ceased to be in force if the units are
issued in pursuance of an offer, agreement or option made or granted
by the trustee-manager while the approval was in force and it was
authorised by the approval to make or grant an offer, agreement or
option which would or might require units to be issued after the
expiration of the approval.
(5) Section 65 shall apply to any resolution whereby an approval is
given for the purposes of this section as if the resolution were a special
resolution for purposes of that section.
(6) Any issue of units in a registered business trust made in
contravention of this section shall be void and consideration given for
the units shall be recoverable accordingly.
(7) Any trustee-manager of a registered business trust which
contravenes this section with respect to any issue of units in the
registered business trust shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $100,000.
(8) The trustee-manager of a registered business trust shall have no
recourse to the trust property for the purposes of reimbursement of any
liabilities incurred by the trustee-manager as a result of this section.
(9) If the trustee-manager of any registered business trust is found
guilty of an offence under subsection (7), the trustee-manager and any
director of the trustee-manager who knowingly contravenes, or
permits or authorises the contravention of this section with respect
to any issue of units in the registered business trust shall be liable to
compensate the person to whom the units were issued for any loss,
damages or costs which that person may have sustained or incurred
thereby; but no proceedings to recover from any director of the
trustee-manager or the trustee-manager for any such loss, damages or
costs shall be commenced after the expiration of 6 years from the date
of such issue of units.
[Companies 1994 Ed., s. 161]
Duty of substantial unitholders to notify securities exchange
37. [Repealed by Act 2 of 2009 wef 19/11/2012]
Duty of substantial unitholders to notify trustee-manager of
registered business trust
38. [Repealed by Act 2 of 2009 wef 19/11/2012]
Duty of substantial shareholder of trustee-manager to notify
securities exchange
39. [Repealed by Act 2 of 2009 wef 19/11/2012]
PART VI
CIVIL LIABILITY AND TAKE-OVERS
[2/2009 wef 26/11/2010]
Civil liability of trustee-managers to unitholders
40.—
(1) Any unitholder of a registered business trust who suffers
loss or damage because of any conduct of the trustee-manager of the
registered business trust which contravenes any provision of this Act
may recover the amount of the loss or damage by action against the
trustee-manager, whether or not the trustee-manager has been
convicted of an offence in respect of such contravention.
(2) Any action under subsection (1) shall commence within 6 years
after the cause of action arises.
(3) This section shall not affect any liability that any person has
under any other provision of this Act or under any other written law or
rule of law.
[Aust. Corp. 2001, s. 601MA]
Power to acquire units of unitholders dissenting from
arrangement or contract approved by 90% majority
40A.—
(1) Where an arrangement or a contract involving the
transfer of all of the units, or all of the units in any particular class,
in a business trust (referred to in this section as the subject trust) to —
(a) the trustee of another trust (including the trustee-manager of
another business trust and the trustee of a real estate
investment trust); or
(b) a corporation,
(referred to in this section) as the transferee has, within 4 months after
the making of the offer in that behalf by the transferee, been approved
as to the units or as to each class of units whose transfer is involved by
the holders of not less than 90% of the total number of those units or of
the units of that class (other than units already held at the date of the
offer by the transferee), the transferee may, at any time within 2
months after the offer has been so approved, give notice in the
prescribed manner to any dissenting unitholder that it desires to
acquire his units.
(2) When a notice referred to in subsection (1) is given, the
transferee shall, unless on an application made by a dissenting
unitholder within one month from the date on which the notice was
given or within 14 days of a statement being supplied to a dissenting
unitholder under subsection (3) (whichever is the later) a court thinks
fit to order otherwise, be entitled and bound to acquire those units —
(a) on the terms which under the arrangement or contract the
units of the approving unitholders are to be transferred to the
transferee; or
(b) if the offer contained 2 or more alternative sets of terms, on
the terms which were specified in the offer as being applicable
to dissenting unitholders.
(3) Where a transferee has given notice to any dissenting unitholder
of the subject trust that it desires to acquire his units, the dissenting
unitholder shall be entitled to require the transferee by a demand in
writing served on the transferee, within one month from the date on
which the notice was given, to supply him with a statement in writing
of the names and addresses of all other dissenting unitholders as
shown in the register of unitholders of the subject trust; and the
transferee shall not be entitled or bound to acquire the units of the
dissenting unitholders until 14 days after the posting of the statement
of such names and addresses to the dissenting unitholder.
(4) Where, in pursuance of any such arrangement or contract, units
in the subject trust are transferred to a transferee or its nominee and
those units together with any other units in the subject trust held by the
transferee at the date of the transfer comprise or include 90% of the
total number of the units in the subject trust or of any class of those
units, then —
(a) the transferee shall within one month from the date of the
transfer (unless on a previous transfer pursuant to the
arrangement or contract it has already complied with this
requirement) give notice of that fact in the prescribed manner
to the holders of the remaining units in, or of the remaining
units of that class of units in, the subject trust who have not
assented to the arrangement or contract; and
(b) any such holder may within 3 months from receiving the
notice require the transferee to acquire his units.
(5) Where a unitholder has given notice under subsection (4)(b) with
respect to any units, the transferee shall be entitled and bound to
acquire those units —
(a) on the terms on which under the arrangement or contract the
units of the approving unitholders were transferred to it; or
(b) on such other terms as are agreed or as the court on the
application of either the transferee or the unitholder thinks fit
to order.
(6) Where a notice has been given by the transferee under
subsection (1) and a court has not, on an application made by the
dissenting unitholder, ordered to the contrary, the transferee shall —
(a) after the expiration of one month after the date on which the
notice has been given;
(b) after 14 days after a statement has been supplied to a
dissenting unitholder under subsection (3); or
(c) if an application to the court by the dissenting unitholder is
then pending, after that application has been disposed of,
transmit a copy of the notice to the trustee of the subject trust together
with an instrument of transfer executed on behalf of the unitholder by
any person appointed by the transferee and on its own behalf by the
transferee, and pay, allot or transfer to the trustee of the subject trust
the amount or other consideration representing the price payable by
the transferee for the units which by virtue of this section the
transferee is entitled to acquire, and the trustee of the subject trust shall
thereupon register the transferee as the holder of those units.
(7) Any sums received by the trustee of the subject trust under this
section shall be paid into a separate bank account, and any such sums
and any other consideration so received shall be held by that trustee in
trust for the several persons who had held the units in respect of which
they were respectively received.
(8) Where any consideration other than cash is held in trust by the
trustee of the subject trust for any person under this section, the trustee
may, after the expiration of 2 years from, and shall, before the
expiration of 10 years from, the date on which such consideration was
allotted or transferred to him, transfer such consideration to the
Official Receiver.
(9) The Official Receiver shall sell or dispose of any consideration
so received in such manner as he thinks fit and shall deal with the
proceeds of such sale or disposal as if it were moneys paid to him
pursuant to section 49.
(10) In determining the units in the subject trust already held by the
transferee at the date of the offer under subsection (1) or the
percentage of the total number of units in the subject trust or of any
class of those units held by the transferee under subsection (4), units
held or acquired —
(a) by a nominee on behalf of the transferee;
(b) where the transferee is a corporation, by its related
corporation or by a nominee of the related corporation;
(c) where the transferee is the trustee-manager of a business trust
or the trustee of a real estate investment trust —
(i) by a person who controls more than 50% of the voting
power in the business trust or real estate investment
trust, or by a nominee of that person;
(ii) by the trustee-manager of the business trust on its own
account, or by the manager for the real estate
investment trust, or by a nominee of the trustee-
manager or manager; or
(iii) by a related corporation of the trustee-manager for the
business trust or the manager for the real estate
investment trust or by a nominee of that related
corporation; or
(d) where the transferee is the trustee of a trust that is not a
business trust or a real estate investment trust, by a related
corporation of the trustee (being a corporation) or by a
nominee of that related corporation,
shall be treated as held or acquired by the transferee.
(11) For the avoidance of doubt, in this section —
(a) a reference to a transferee (being the trustee of a trust)
holding, acquiring or contracting to acquire units in another
trust is a reference to his doing any of these as trustee of the
first-mentioned trust; and
(b) a reference to a transfer of units of a trust to a transferee (being
the trustee of another trust) is a reference to such transfer of
units to him as trustee of that other trust.
(12) The reference in subsection (1) to units already held by the
transferee —
(a) includes a reference to units which the transferee has
contracted to acquire; but
(b) excludes units which are the subject of a contract binding the
holder thereof to accept the offer when it is made, being a
contract entered into by the holder for no consideration and
under seal or for no consideration other than a promise by the
transferee to make the offer.
(13) Where, during the period within which an offer for the transfer
of units to the transferee can be approved, the transferee acquires or
contracts to acquire any of the units whose transfer is involved but
otherwise than by virtue of the approval of the offer, then the
transferee may be treated for the purposes of this section as having
acquired or contracted to acquire those units by virtue of the approval
of the offer if, and only if —
(a) the consideration for which the units are acquired or
contracted to be acquired (referred to in this subsection as
the acquisition consideration) does not at that time exceed the
consideration specified in the terms of the offer; or
(b) those terms are subsequently revised so that when the revision
is announced the acquisition consideration, at the time
referred to in paragraph (a), no longer exceeds the
consideration specified in those terms.
(14) In this section —
“dissenting unitholder” includes a unitholder who has not
assented to the arrangement or contract and any unitholder
who has failed or refused to transfer his units to the transferee
in accordance with the arrangement or contract;
“real estate investment trust” means a collective investment
scheme that is —
(a) authorised under section 286 of the Securities and
Futures Act (Cap. 289) or recognised under section 287
of that Act; and
(b) a trust that invests primarily in real estate and real estate-
related assets specified by the Authority in the Code on
Collective Investment Schemes and all or any of the
units of which are listed for quotation on a securities
exchange. [2/2009 wef 29/03/2010]
Remedies in cases of oppression or injustice
41.—
(1) Any unitholder or any holder of a debenture of a registered
business trust may apply to the court for an order under this section on
the ground —
(a) that the affairs of the registered business trust are being
conducted by the trustee-manager of the registered business
trust, or the powers of the directors of the trustee-manager of
the registered business trust are being exercised, in a manner
oppressive to one or more of the unitholders or holders of
debentures of the registered business trust including himself
or in disregard of his or their interests as unitholders or
holders of debentures of the registered business trust; or
(b) that some act of the trustee-manager of the registered business
trust, carried out in its capacity as trustee-manager of the
registered business trust, has been done or is threatened or that
some resolution of the unitholders or holders of debentures of
the registered business trust or any class of them has been
passed or is proposed which unfairly discriminates against or
is otherwise prejudicial to one or more of the unitholders or
holders of debentures of the registered business trust
(including himself).
(2) If on such application the court is of the opinion that either of the
grounds referred to in subsection (1) is established, the court may,
with a view to bringing to an end to or remedying the matters
complained of, make such order as it thinks fit and, without prejudice
to the generality of the foregoing, the order may —
(a) direct or prohibit any act or cancel or vary any transaction or
resolution;
(b) regulate the conduct of the affairs of the trustee-manager of a
registered business trust in relation to the registered business
trust in future;
(c) authorise civil proceedings against the directors of the trustee-
manager of the registered business trust to be brought in the
name of or on behalf of all the unitholders of the registered
business trust as a whole by such person or persons and on
such terms as the court may direct;
(d) provide for the purchase of the units in or debentures of the
registered business trust by other unitholders or holders of
debentures of the registered business trust;
(e) provide that the registered business trust be wound up; or
(f) provide that the costs and expenses of and incidental to the
application for the order are to be raised and paid out of the
trust property of the registered business trust or to be borne
and paid in such manner and by such persons as the court
deems fit.
(3) Where an order under this section makes any alteration in or
addition to the trust deed of any registered business trust, then,
notwithstanding anything in any other provision of this Act but
subject to the provisions of the order, the trustee-manager of the
registered business trust concerned shall not have power, without the
leave of the court, to make any further alteration in or addition to the
trust deed that is inconsistent with the provisions of the order; but
subject to the foregoing provisions of this subsection the alterations or
additions made by the order shall have the same effect as if duly made
by special resolution of the unitholders of the registered business trust.
(4) A copy of any order made under this section shall be lodged by
the applicant with the Authority within 7 days after the making of the
order.
(5) Any person who contravenes subsection (4) shall be guilty of an
offence and shall be liable on conviction to a fine not exceeding
$10,000 and, in the case of a continuing offence, to a further fine not
exceeding $1,000 for every day or part thereof during which the
offence continues after conviction.
(6) This section shall apply to a person who is not a unitholder of a
registered business trust but to whom units in the registered business
trust have been transmitted by operation of law as it applies to the
unitholders of a registered business trust; and references to a
unitholder or unitholders shall be construed accordingly.
[Companies 1994 Ed., s. 216]
Derivative or representative actions
42.—
(1) Subject to subsection (2), a complainant may apply to the
court for leave to bring an action in the name and on behalf of all the
unitholders of the registered business trust as a whole or intervene in
an action to which the trustee-manager, on behalf of the registered
business trust, is a party for the purpose of prosecuting, defending or
discontinuing the action on behalf of the trustee-manager.
(2) No action may be brought and no intervention in an action may
be made under subsection (1) unless the court is satisfied that —
(a) the complainant has given 14 days’ notice to the directors of
the trustee-manager of the registered business trust of his
intention to apply to the court under subsection (1) if the
directors of the trustee-manager do not bring, diligently
prosecute or defend or discontinue, the action;
(b) the complainant is acting in good faith; and
(c) it appears to be prima facie in the interests of all the
unitholders of the registered business trust as a whole that the
action be brought, prosecuted, defended or discontinued.
(3) Where a complainant on an application can establish to the
satisfaction of the court that it is not expedient to give notice as
required in subsection (2)(a), the court may make such interim order
as it thinks fit pending the complainant giving notice as required.
(4) In granting leave under this section, the court may make such
orders or interim orders as it thinks fit in the interests of justice,
including (but not limited to) the following:
(a) an order authorising the complainant or any other person to
control the conduct of the action;
(b) an order giving directions for the conduct of the action; and
(c) an order requiring the trustee-manager of a registered
business trust in its capacity as trustee-manager of the
registered business trust to pay reasonable legal fees and
disbursements incurred by the complainant in connection
with the action.
(5) Where an action has been commenced or is to be brought in the
State Courts, an application for leave under subsection (1) shall be
made in a District Court. [Act 5 of 2014 wef 07/03/2014]
(6) In this section and section 43, “complainant” means —
(a) any unitholder of a registered business trust; or
(b) any other person who, in the discretion of the court, is a
proper person to make an application under this section.
[Companies 1994 Ed., s. 216A]
Evidence of shareholders’ approval not decisive — court
approval to discontinue action under section 42
43.—
(1) An application made or an action brought or intervened in
under section 42 shall not be stayed or dismissed by reason only that it
is shown that an alleged breach of a right of or duty owed to all the
unitholders of the registered business trust as a whole has been or may
be approved by the unitholders of the registered business trust, but
evidence of approval by the unitholders may be taken into account by
the court in making an order under that section.
(2) An application made or an action brought or intervened in under
section 42 shall not be stayed, discontinued, settled or dismissed for
want of prosecution without the approval of the court given upon such
terms as the court thinks fit and, if the court determines that the interest
of any complainant may be substantially affected by such stay,
discontinuance, settlement or dismissal, the court may order any party
to the application or action to give notice to the complainant.
(3) In an application made or an action brought or intervened in
under section 42, the court may at any time order the trustee-manager
of the registered business trust in its capacity as trustee-manager of the
registered business trust to pay to the complainant interim costs,
including legal fees and disbursements, but the complainant may be
accountable for such interim costs upon final disposition of the
application or action.
[Companies 1994 Ed., s. 216B]
PART VII
WINDING UP OF REGISTERED BUSINESS TRUST
Winding up under provision of trust deed
44.—
(1) Subject to subsection (2), the trust deed of a registered
business trust may provide that the registered business trust is to be
wound up —
(a) at a specified time;
(b) in specified circumstances; or
(c) on the happening of a specified event.
(2) For the purposes of this section and section 47, any provision of
the trust deed of a registered business trust that purports to provide that
the registered business trust is to be wound up if the particular
company which is acting as the trustee-manager of that registered
business trust ceases to be the trustee-manager of that registered
business trust, shall have no effect.
(3) The trustee-manager of a registered business trust may wind up
the registered business trust —
(a) if the trust deed of the registered business trust provides that
the business trust may or is to be wound up at a specified time,
in specified circumstances or on the happening of a specified
event;
(b) the specified time, circumstance or event has arisen; and
(c) the winding up of the registered business trust has been
approved by a majority of the number of votes of unitholders
of the registered business trust who, being entitled to do so,
vote in person or, where proxies are allowed, by proxy present
at a general meeting convened in accordance with the
requirements under Division 1 of Part IX.
[Companies 1994 Ed., s. 290 (1) (a); Aust. Corp. 2001, s. 601NA]
Winding up at direction of unitholders
45.—
(1) Notwithstanding any provision in the trust deed of a
registered business trust, the trustee-manager of the registered
business trust shall wind up the registered business trust upon the
passing of a special resolution by the unitholders of the registered
business trust at a general meeting convened in accordance with
Division 1 of Part IX directing the trustee-manager to wind up the
registered business trust.
(2) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $100,000 and, in the case
of a continuing offence, to a further fine not exceeding $10,000 for
every day or part thereof during which the offence continues after
conviction.
[Companies 1994 Ed., s. 290 (1) (b); Aust. Corp. 2001, s. 601NB]
Winding up ordered by court
46.—
(1) A registered business trust may be wound up under an
order of the court on the application of —
(a) the trustee-manager of the registered business trust;
(b) a director of the trustee-manager of the registered business
trust;
(c) a unitholder of the registered business trust; or
(d) a creditor of the registered business trust on the basis of
subsection (2)(b). [42/2005 wef 01/04/2006]
(2) The court may, on an application referred to in subsection (1),
order the trustee-manager of a registered business trust to wind up the
registered business trust if —
(a) the court thinks it is just and equitable to make the order; or
(b) within 3 months before the making of the application for the
order, execution was issued on a judgment, a decree or an
order obtained in court, whether in Singapore or elsewhere, in
favour of a creditor of the registered business trust and the
execution has been returned unsatisfied,
and upon such order, the trustee-manager shall wind up the registered
business trust.
(3) The court may order the trustee-manager of a registered business
trust to wind up the registered business trust on the application of the
Authority on any of the following grounds:
(a) the registered business trust has carried on, promoted or
participated in a pyramid selling scheme or arrangement
within the meaning of section 2(1) of the Multi-Level
Marketing and Pyramid Selling (Prohibition) Act
(Cap. 190) in contravention of that Act;
(b) the registered business trust is being used for an unlawful
purpose or for purposes prejudicial to public peace, welfare or
good order in Singapore or against national security or
interest; or
(c) a report has been made in respect of the registered business
trust by an inspector appointed by the Minister under
section 103, [42/2005 wef 01/04/2006]
and upon such order, the trustee-manager shall wind up the registered
business trust.
(4) On the making of a winding up order by the court under
subsection (2), the applicant shall within 7 days —
(a) lodge a copy of that order with the Authority; and
(b) cause a copy of that order to be served upon the secretary of
the trustee-manager of the registered business trust or upon
such other person and in such manner as the court may direct.
[42/2005 wef 01/04/2006]
(5) Any person who contravenes subsection (4) shall be guilty of an
offence and shall be liable on conviction to a fine not exceeding
$25,000 and, in the case of a continuing offence, to a further fine not
exceeding $2,500 for every day or part thereof during which the
offence continues after conviction.
[Companies 1994 Ed., ss. 253, 254, 262; Aust. Corp. 2001, s. 601ND]
Winding up of registered business trust
47.—
(1) Subject to section 48(1), the trustee-manager of a
registered business trust shall ensure that the registered business
trust is wound up in accordance with the trust deed of the registered
business trust or an order referred to in section 48(2) in all cases of
winding up, including but not limited to the following situations:
(a) the trust deed provides that the registered business trust is to
be wound up at a specified time, in specified circumstances or
on the happening of a specified event and —
(i) the specified time, circumstance or event has arisen;
and
(ii) the winding up of the registered business trust has been
approved by a majority of the number of votes of
unitholders of the registered business trust who, being
entitled to do so, vote in person or, where proxies are
allowed, by proxy present at a general meeting
convened in accordance with the requirements under
Division 1 of Part IX;
(b) the unitholders of the registered business trust pass a special
resolution directing the trustee-manager to wind up the
registered business trust; or
(c) the court makes an order directing the trustee-manager to
wind up the registered business trust.
(2) Where a registered business trust is to be wound up, the trustee-
manager of the registered business trust shall —
(a) give notice in writing of the proposed winding up to the
Authority within 7 days after the passing of the resolution
referred to in subsection (1)(a)or(b); and
(b) within 10 days after the passing of the resolution referred to in
subsection (1)(a)or(b), give notice of the resolution in one or
more newspapers circulating in Singapore.
(3) Upon the completion of the winding up of a registered business
trust in accordance with subsection (1), whether proposed by the
trustee-manager of the registered business trust or otherwise, the
trustee-manager shall give notice in writing of the completed winding
up to the Authority within 2 business days of the completion.
(4) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $100,000 and, in the case
of a continuing offence, to a further fine not exceeding $10,000 for
every day or part thereof during which the offence continues after
conviction.
(5) Any trustee-manager of a registered business trust which
contravenes subsection (2) or (3) shall be guilty of an offence and
shall be liable on conviction to a fine not exceeding $25,000 and, in
the case of a continuing offence, to a further fine not exceeding $2,500
for every day or part thereof during which the offence continues after
conviction.
[Aust. Corp. 2001, s. 601NE]
Court may make other orders for winding up
48.—
(1) The court may, by order, appoint an approved liquidator to
take responsibility for winding up a registered business trust in
accordance with the trust deed of the registered business trust and any
order referred to in subsection (2) if the court thinks it necessary to do
so for reasons including the cessation of the trustee-manager of the
registered business trust to exist or the failure of the trustee-manager
to properly discharge its obligations in relation to the winding up, and
upon such appointment by the court and notwithstanding any
provision in the trust deed, the trustee-manager shall no longer have
any authority or power to wind up the registered business trust.
(2) The court may, by order, give directions as to —
(a) the procedures for the winding up of a registered business
trust if the court thinks it necessary to do so for reasons
including the inadequacy or impracticability of the provisions
in the trust deed of the registered business trust; and
(b) the powers, duties, obligations and remuneration of the
liquidator of a registered business trust.
(3) An order referred to in subsection (1) or (2) may be made on the
application of —
(a) the trustee-manager of a registered business trust;
(b) a director of the trustee-manager of a registered business trust;
(c) a unitholder of a registered business trust;
(d) the Authority; or
(e) a creditor of a registered business trust.
(4) An order referred to in subsection (2) may be made on the
application of the liquidator of a registered business trust.
(5) Upon the completion of the winding up of a registered business
trust by a liquidator, the liquidator shall give notice in writing of the
completed winding up to the Authority within 2 business days of the
completion.
(6) Any person who contravenes subsection (5) shall be guilty of an
offence and shall be liable on conviction to a fine not exceeding
$25,000 and, in the case of a continuing offence, to a further fine not
exceeding $2,500 for every day or part thereof during which the
offence continues after conviction.
[Aust. Corp. 2001, s. 601NF]
Unclaimed money to be paid to Official Receiver
49.—
(1) If the trustee-manager of a registered business trust that is
being wound up or the liquidator of a registered business trust has in
its possession or under its control —
(a) any unclaimed or undistributed moneys arising from the trust
property of the registered business trust on completion of the
winding up of the registered business trust; or
(b) any unclaimed distribution of profits, income or other
payments or returns to unitholders which have remained
unclaimed for more than 6 months from the date when the
distribution became payable,
the trustee-manager or the liquidator shall pay those moneys to the
Official Receiver to be placed to the credit of the Business Trusts
Liquidation Account and shall be entitled to the prescribed certificate
of receipt for the moneys so paid and that certificate shall be an
effectual discharge to him in respect thereof.
(2) The court may, at any time on the application of the Official
Receiver, order the trustee-manager of a registered business trust that
is being wound up or the liquidator of a registered business trust to
submit to the court an account of any unclaimed or undistributed
funds, distributions or other moneys in his hands or under his control
verified by affidavit and may direct an audit thereof and may direct
him to pay those moneys to the Official Receiver to be placed to the
credit of the Business Trusts Liquidation Account.
(3) The interest arising from the investment of the moneys standing
to the credit of the Business Trusts Liquidation Account shall be paid
into the Consolidated Fund.
(4) For the purposes of this section, the court may exercise all the
powers conferred by this Act with respect to the discovery and
realisation of the property of the registered business trust and the
provisions of this Act with respect thereto shall apply, with such
adaptations as are prescribed, to proceedings under this section.
(5) This section shall not, except as expressly declared in this Act,
deprive any person of any other right or remedy to which he is entitled
against the trustee-manager of a registered business trust that is being
wound up or the liquidator of a registered business trust or any other
person.
(6) If any claimant makes any demand for any money placed to the
credit of the Business Trusts Liquidation Account, the Official
Receiver, upon being satisfied that the claimant is the owner of the
money, shall authorise payment thereof to be made to him out of that
Account or, if it has been paid into the Consolidated Fund, may
authorise payment of a like amount to be made to him out of moneys
made available by Parliament for the purpose.
(7) Any person dissatisfied with the decision of the Official
Receiver in respect of a claim made in pursuance of subsection (6)
may appeal to the court which may confirm, disallow or vary the
decision.
(8) Where any unclaimed moneys paid to any claimant are
afterwards claimed by any other person, that other person shall not
be entitled to any payment out of the Business Trusts Liquidation
Account or out of the Consolidated Fund but such person may have
recourse against the claimant to whom the unclaimed moneys have
been paid.
(9) Any unclaimed moneys paid to the credit of the Business Trusts
Liquidation Account to the extent to which the unclaimed moneys
have not been under this section paid out of that Account shall, on the
lapse of 7 years from the date of the payment of the moneys to the
credit of that Account, be paid into the Consolidated Fund.
[Companies 1994 Ed., s. 322]
Responsibility for fraudulent trading
50.—
(1) If, in the course of the winding up of a registered business
trust or in any proceedings against the trustee-manager in its capacity
as the trustee-manager of the registered business trust, it appears that
an officer of the trustee-manager who was knowingly a party to the
contracting of a debt on behalf of the registered business trust had, at
the time the debt was contracted, no reasonable or probable ground of
expectation, after taking into consideration the other liabilities of the
registered business trust, if any, at the time, of the trustee-manager
being able to pay the debt from the trust property of the registered
business trust, the officer shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $100,000 or to
imprisonment for a term not exceeding 2 years or to both.
(2) Where a person has been convicted of an offence under
subsection (1) in relation to the contracting of such a debt as is
referred to in that subsection, the court, on the application of the
liquidator or any creditor of the registered business trust or unitholder
of the registered business trust, may, if it thinks proper to do so,
declare that the person shall be personally responsible without any
limitation of liability for the payment of the whole or any part of that
debt.
(3) If, in the course of the winding up of a registered business trust or
in any proceedings against the trustee-manager in its capacity as the
trustee-manager of the registered business trust, it appears that any
business of the registered business trust has been carried on with intent
to defraud creditors of the registered business trust or creditors of any
other person or for any fraudulent purpose, the court, on the
application of the liquidator or any creditor of the registered
business trust or unitholder of the registered business trust, may, if
it thinks proper to do so, declare that any person who was knowingly a
party to the carrying on of such business of the registered business
trust in that manner shall be personally responsible, without any
limitation of liability, for all or any of the debts or other liabilities
incurred by the trustee-manager on behalf of the registered business
trust as the court directs.
(4) Where the court makes any declaration pursuant to
subsection (2) or (3), the court may give such further directions as
it thinks proper for the purpose of giving effect to that declaration, and
in particular may make provision for making the liability of any
person under the declaration a charge on any debt or obligation due
from the trustee-manager in its capacity as trustee-manager of the
registered business trust to him, or on any charge or any interest in any
charge on any trust property of the registered business trust held by or
vested in him or any corporation or person on his behalf, or any person
claiming as assignee from or through the person liable or any
corporation or person acting on his behalf, and may from time to time
make such further order as is necessary for the purpose of enforcing
any charge imposed under this subsection.
(5) For the purpose of subsection (4), “assignee” includes any
person to whom or in whose favour, by the directions of the person
liable, the debt, obligation or charge was created, issued or transferred
or the interest created, but does not include an assignee for valuable
consideration (not including consideration by way of marriage) given
in good faith and without notice of any of the matters on the ground of
which the declaration is made.
(6) Where any business of a registered business trust is carried on
with the intent or for the purpose mentioned in subsection (3), every
person who was knowingly a party to the carrying on of the business
with that intent or purpose shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $250,000 or to
imprisonment for a term not exceeding 7 years or to both.
(7) Subsection (6) shall apply to a registered business trust whether
or not it has been, or is in the course of being, wound up.
(8) This section shall have effect notwithstanding that the person
concerned is criminally liable apart from this section in respect of the
matters on the ground of which the declaration is made.
(9) On the hearing of an application under subsection (2) or (3), the
liquidator may himself give evidence or call witnesses.
[Companies 1994 Ed., ss. 339 (3), 340]
PART VIII
DEREGISTRATION
Voluntary deregistration by trustee-manager
51.—
(1) The trustee-manager of a registered business trust may
apply to the Authority for deregistration of the registered business
trust with the Authority, if —
(a) the deregistration of the registered business trust is approved
by unitholders holding in the aggregate not less than three-
fourths of the voting rights of all the unitholders of the
registered business trust, who, being entitled to do so, vote in
person or, where proxies are allowed, by proxy on a poll at a
general meeting of which not less than 21 days’ written notice
specifying the intention to propose the resolution to deregister
the registered business trust has been duly given; and
(b) the resolution has not been voted against by unitholders
holding in the aggregate 10% or more of the voting rights of
all the unitholders of the registered business trust who, being
entitled to do so, vote in person or, where proxies are allowed,
by proxy on a poll.
(2) Where the Authority is satisfied that an application for
deregistration of a registered business trust is in compliance with
subsection (1) and the directors of the trustee-manager of the
registered business trust have made a statutory declaration declaring
that units in the business trust —
(a) are no longer held by any person (other than a sophisticated
investor within the meaning of section 282X(2) of the
Securities and Futures Act (Cap. 289) or a person referred
to in section 282W of that Act); or
(b) are held by no more than 2 persons,
the Authority may deregister the registered business trust and, upon
such deregistration, the Authority shall give notice of the
deregistration of the registered business trust in the Gazette.
(3) The Authority shall notify the trustee-manager of a registered
business trust of the deregistration of the registered business trust.
[Aust. Corp. 2001, s. 601PA]
Power of Authority to deregister defunct business trust
52.—
(1) Where the Authority has reasonable cause to believe that
the trustee-manager of a registered business trust is not managing or
operating the business of the registered business trust, the Authority
may send to the trustee-manager by post a letter to that effect and
stating that if an answer showing cause to the contrary is not received
within one month from the date thereof, a notice will be published in
the Gazette with a view to deregistering the registered business trust.
(2) Unless the Authority receives an answer within one month from
the date of the letter referred to in subsection (1) to the effect that the
trustee-manager is managing and operating the business of the
registered business trust, the Authority may publish in the Gazette and
send to the trustee-manager by registered post a notice that, at the
expiration of 3 months from the date of that notice, the Authority may
apply to the court to appoint a liquidator with respect to the registered
business trust.
(3) Upon receiving a notice of the completion of the winding up of
the registered business trust from the liquidator referred to in
subsection (2), as required under section 48(5), the Authority may
deregister the registered business trust, and shall publish a notice
thereof in the Gazette, and on the publication in the Gazette of the
notice the business trust shall be deregistered; but the liability, if any,
of every officer of the trustee-manager of the business trust and every
unitholder of the business trust shall continue and may be enforced as
if the business trust had not been wound up.
(4) If any person feels aggrieved by the deregistration of the
business trust, the court, on an application made by that person at any
time within 6 years after the business trust has been so deregistered
may, if satisfied that the trustee-manager of the business trust was, at
the time of the deregistration of the business trust, managing and
operating the business of the business trust such that it is just that the
registration of the business trust should be reinstated, order the
registration of the business trust be reinstated; and upon a copy of the
order being lodged with the Authority, the business trust shall be
deemed to have continued to be registered as if it had never been
deregistered, and the court may by the order give such directions and
make such provisions as seem just for placing the trustee-manager and
all other persons in the same position as nearly as may be as if the
business trust had not been deregistered.
(5) A notice to be sent under this section to a trustee-manager of a
registered business trust may be addressed to the trustee-manager at its
registered office or, if no office has been registered, to the care of some
officer of the trustee-manager.
[Companies 1994 Ed., s. 344]
PART IX
MANAGEMENT AND ADMINISTRATION
Division 1 — Meetings and proceedings
Annual general meeting
53.—
(1) The trustee-manager of a registered business trust shall call
a general meeting of the unitholders of the registered business trust
known as the “annual general meeting” once in every calendar year
and not more than 15 months after the holding of the last preceding
annual general meeting, but so long as the unitholders of the registered
business trust hold their first annual general meeting within 18 months
of the registration of the registered business trust, the trustee-manager
need not call an annual general meeting in the year of the registration
of the registered business trust or in the following year.
(2) Notwithstanding subsection (1), the Authority, on the
application of the trustee-manager of a registered business trust,
may, if for any special reason it thinks fit to do so, extend the period of
15 months or 18 months referred to in that subsection,
notwithstanding that such period is so extended beyond the
calendar year.
(3) Subject to notice being given to all the unitholders of a registered
business trust entitled to receive notice of the meeting, a general
meeting may be held at any time and the unitholders of a registered
business trust may resolve that any meeting held or summoned to be
held shall be the annual general meeting of the unitholders of such
registered business trust.
(4) If default is made in holding an annual general meeting of the
unitholders of a registered business trust —
(a) the trustee-manager of the registered business trust shall be
guilty of an offence and shall be liable on conviction to a fine
not exceeding $50,000 and, in the case of a continuing
offence, to a further fine not exceeding $5,000 for every day
or part thereof during which the offence continues after
conviction; and
(b) the court may, on the application of any unitholder of the
registered business trust, order a general meeting to be called.
[Companies 1994 Ed., s. 175]
Convening of extraordinary general meeting on requisition
54.—
(1) The directors of the trustee-manager of a registered
business trust shall, notwithstanding any provision in the trust deed
of the registered business trust, on the requisition of unitholders
holding in the aggregate at the date of the deposit of the requisition not
less than 10% of the total voting rights of all the unitholders of the
registered business trust having at that date a right to vote at general
meetings, immediately proceed duly to convene an extraordinary
general meeting of the unitholders of the registered business trust to be
held as soon as practicable but in any case not later than 2 months after
the receipt by the trustee-manager of the requisition.
(2) The requisition shall state the objects of the meeting and shall be
signed by the requisitionists and deposited at the registered office of
the trustee-manager of the registered business trust, and may consist
of several documents in like form each signed by one or more
requisitionists.
(3) If the directors of the trustee-manager of the registered business
trust do not, within 21 days after the date of the deposit of the
requisition, proceed to convene a meeting, the requisitionists or any of
them representing more than 50% of the total voting rights of all of the
requisitionists, may themselves convene a meeting, in the same
manner as nearly as possible as that in which meetings are to be
convened by the trustee-manager, but any meeting so convened shall
not be held after the expiration of 3 months from that date.
(4) The trustee-manager of the registered business trust shall pay to
the requisitionists any reasonable expenses incurred by the
requisitionists by reason of the failure of the directors of the
trustee-manager to convene a meeting and —
(a) the trustee-manager shall be liable to make such payment to
the requisitionists without any recourse to the trust property of
the registered business trust for reimbursement of any
expenses incurred as a result of that liability; and
(b) any sum so paid by the trustee-manager to the requisitionists
shall be retained by the trustee-manager out of any sums due
or to become due from the trustee-manager to the directors of
the trustee-manager by way of fees or other remuneration in
respect of the services of those directors.
(5) Any trustee-manager of a registered business trust which
contravenes subsection (4) shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $50,000 and, in the case of
a continuing offence, to a further fine not exceeding $5,000 for every
day or part thereof during which the offence continues after
conviction.
[Companies 1994 Ed., s. 176]
Calling of meetings
55.—
(1) Two or more unitholders of a registered business trust may
call a meeting of unitholders of the registered business trust if they —
(a) hold in the aggregate not less than 10% of the total voting
rights of all the unitholders having at the date of calling of the
meeting a right to vote at general meetings of the unitholders
of the registered business trust; or
(b) constitute not less than 5% in number of the unitholders of the
registered business trust or such lesser number as is provided
by the trust deed of the registered business trust.
(2) The trustee-manager of a registered business trust shall call a
meeting of the unitholders of the registered business trust or of a class
of unitholders of the registered business trust, other than a meeting for
the passing of a special resolution, by notice in writing of not less than
14 days or such longer period as is provided in the trust deed of the
registered business trust.
(3) A meeting shall, notwithstanding that it is called by notice
shorter than is required by subsection (2), be deemed to be duly called
if it is so agreed —
(a) in the case of a meeting called as the annual general meeting,
by all the unitholders entitled to attend and vote thereat; or
(b) in the case of any other meeting, by a majority in number of
the unitholders having a right to attend and vote thereat, being
a majority which together holds not less than 95% of the total
voting rights of all the unitholders at that meeting.
(4) The trustee-manager of a registered business trust shall serve
notice of every meeting on every unitholder of the registered business
trust having a right to attend and vote thereat in the manner in which
such notice is required to be served under the trust deed of the
registered business trust.
(5) Any trustee-manager of a registered business trust which
contravenes subsection (2) or (4) shall be guilty of an offence and
shall be liable on conviction to a fine not exceeding $50,000 and, in
the case of a continuing offence, to a further fine not exceeding $5,000
for every day or part thereof during which the offence continues after
conviction.
[Companies 1994 Ed., s. 177]
Provision in trust deed as to right to demand poll
56.—
(1) Any provision in the trust deed of a registered business
trust shall be void in so far as it would have the effect —
(a) of excluding the right to demand a poll at a general meeting of
the unitholders of the registered business trust on any question
or matter other than the election of the chairman of the
meeting or the adjournment of the meeting;
(b) of making ineffective a demand for a poll on any question or
matter other than the election of the chairman of the meeting
or the adjournment of the meeting that is made —
(i) by not less than 5 unitholders of the registered business
trust having the right to vote at the meeting; or
(ii) by a unitholder or unitholders of the registered
business trust representing not less than 10% of the
total voting rights of all the unitholders having the
right to vote at the meeting; or
(c) of requiring the instrument appointing a proxy or any other
document necessary to show the validity of or otherwise
relating to the appointment of a proxy to be received by the
trustee-manager of the registered business trust or any other
person more than 48 hours before a meeting or adjourned
meeting in order that the appointment may be effective
thereat.
(2) The instrument appointing a proxy to vote at a meeting of the
unitholders of a registered business trust shall be deemed to confer
authority to demand or join in demanding a poll, and for the purposes
of subsection (1), a demand by a person as proxy for a unitholder of
the registered business trust shall be deemed to be the same as a
demand by the unitholder.
(3) A person entitled to vote on a poll at a meeting shall be deemed
to be a person entitled to vote for the purposes of this Act.
[Companies 1994 Ed., s. 178]
Quorum, chairman, voting, etc., at meetings
57.—
(1) So far as the trust deed of a registered business trust does
not make any other provision in that behalf and subject to
section 58 —
(a) 2 unitholders of the registered business trust personally
present shall form a quorum;
(b) any unitholder of the registered business trust elected by the
unitholders present at a meeting may be chairman thereof;
(c) on a show of hands, each unitholder of the registered business
trust who is personally present and entitled to vote shall have
one vote; and
(d) on a poll, each unitholder of the registered business trust shall
have one vote in respect of each unit in the registered business
trust held by him.
(2) On a poll taken at a meeting, a person entitled to more than one
vote need not, if he votes, use all his votes or cast all the votes he uses
in the same way.
[Companies 1994 Ed., s. 179]
Voting rights in respect of units in registered business trusts
58.
Notwithstanding any provision in this Act or in the trust deed of
a registered business trust, but subject to section 59, each unit in a
registered business trust shall confer the right at a poll at any general
meeting of the unitholders of the registered business trust to one vote,
and to one vote only.
[Companies 1994 Ed., s. 64]
Unitholder’s rights at meetings
59.
Every unitholder of a registered business trust shall,
notwithstanding any provision in the trust deed of the registered
business trust, have a right to attend any general meeting of the
unitholders of the registered business trust and to speak and vote on
any resolution before the meeting, except that the trust deed may
provide that a unitholder shall not be entitled to vote unless all calls or
other sums personally payable by him in respect of units in the
registered business trust have been paid.
[Companies 1994 Ed., s. 180]
Proxies
60.—
(1) A unitholder of a registered business trust entitled to attend
and vote at a meeting of the unitholders of the registered business
trust, or at a meeting of any class of unitholders of the registered
business trust, shall be entitled to appoint another person or persons,
whether a unitholder or not, as his proxy to attend and vote instead of
the unitholder at the meeting.
(2) A proxy appointed under subsection (1) to attend and vote at a
meeting of the unitholders of a registered business trust instead of a
unitholder of the registered business trust shall also have the same
right as the unitholder to speak at the meeting, but unless the trust deed
otherwise provides —
(a) a proxy shall not be entitled to vote except on a poll;
(b) a unitholder shall not be entitled to appoint more than 2
proxies to attend and vote at the same meeting; and
(c) where a unitholder appoints 2 proxies, the appointments shall
be invalid unless he specifies the proportions of his holdings
to be represented by each proxy.
(3) The trustee-manager of a registered business trust shall, in every
notice calling a meeting of the unitholders of the registered business
trust or a meeting of any class of unitholders of the registered business
trust, provide with reasonable prominence a statement as to the rights
of a unitholder to appoint proxies to attend and vote instead of the
unitholder, and that a proxy need not also be a unitholder.
(4) Any trustee-manager of a registered business trust which
authorises or permits an invitation to appoint as proxy a person or
one of a number of persons specified in the invitation to be issued at
the expense of the registered business trust to only some of the
unitholders of the registered business trust entitled to be sent a notice
of the meeting and to vote thereat by proxy shall be guilty of an
offence.
(5) No person shall be guilty of an offence under subsection (4) by
reason only of the issue to a unitholder of a registered business trust at
his request of a form of appointment naming the proxy or a list of
persons willing to act as proxies if the form or list is available on
request in writing to every unitholder entitled to vote at the meeting by
proxy.
(6) Any trustee-manager of a registered business trust which
authorises or permits an invitation to appoint as proxy a person or
one of a number of persons specified in the invitation to be issued or
circulated shall be guilty of an offence unless the invitation is
accompanied by a form of proxy which shall entitle the unitholder of
the registered business trust to direct the proxy to vote either for or
against the resolution.
(7) Any trustee-manager of a registered business trust which
contravenes subsection (3) shall be guilty of an offence.
[Companies 1994 Ed., s. 181]
Power of court to order meeting
61.
If for any reason it is impracticable to call a meeting in any
manner in which meetings may be called or to conduct the meeting in
the manner provided by the trust deed or under this Act, the court may,
either of its own motion or on the application of any director of the
trustee-manager of a registered business trust or of any unitholder of
the registered business trust who would be entitled to vote at the
meeting or of the personal representative of any deceased unitholder
of the registered business trust, order a meeting to be called, held and
conducted in such manner as the court thinks fit, and may give such
ancillary or consequential directions as it thinks expedient, including a
direction that one unitholder present in person or by proxy shall be
deemed to constitute the quorum for a meeting or that the personal
representative of any deceased unitholder may exercise all or any of
the powers that the deceased unitholder could have exercised if he
were present at the meeting.
[Companies 1994 Ed., s. 182]
Circulation of unitholders’ resolutions, etc.
62.—
(1) Subject to this section, the trustee-manager of a registered
business trust shall, on the requisition of such number of unitholders
of the registered business trust specified in subsection (2) and unless
the unitholders of the registered business trust otherwise resolve at a
general meeting, at the expense of the requisitionists —
(a) give to the unitholders of the registered business trust entitled
to receive notice of the next annual general meeting, notice of
any resolution which may properly be moved and is intended
to be moved at that meeting; and
(b) circulate to the unitholders entitled to have notice of any
general meeting sent to them, any statement of not more than
1,000 words with respect to the matter referred to in any
proposed resolution or the business to be dealt with at that
meeting.
(2) The number of unitholders of a registered business trust
necessary for a requisition under subsection (1) shall be —
(a) any number of unitholders representing not less than 5% of
the total voting rights of all the unitholders of the registered
business trust having at the date of the requisition a right to
vote at the meeting to which the requisition relates; or
(b) not less than 100 unitholders holding units in the registered
business trust on which there has been paid up an average
sum, per unitholder, of not less than $500.
(3) The trustee-manager of a registered business trust shall give the
notice of a resolution and the statement referred to in subsection (1)(b)
to the unitholders of the registered business trust entitled to have
notice of the meeting sent to them by serving on each unitholder, in
any manner permitted for service of the notice of the meeting, a copy
of the resolution and statement.
(4) The trustee-manager of a registered business trust shall serve the
copy of the resolution referred to in subsection (3) in the same manner
and, so far as practicable, at the same time as the notice of the meeting
and, where it is not practicable for it to be served or given at that time,
the trustee-manager shall serve the copy of the resolution or give
notice of the general effect of the resolution as soon as practicable
thereafter.
(5) The trustee-manager of a registered business trust shall not be
bound under this section to give notice of any resolution or to circulate
any statement unless a copy of the requisition signed by the
requisitionists, or 2 or more copies which between them contain the
signatures of all the requisitionists, is deposited at the registered office
of the trustee-manager —
(a) in the case of a requisition requiring notice of a resolution, not
less than 6 weeks before the meeting; and
(b) in the case of any other requisition, not less than one week
before the meeting.
(6) Notwithstanding subsection (5), a copy of a requisition requiring
notice of a resolution deposited at the registered office of the trustee-
manager shall be deemed to have been properly deposited for the
purposes of that subsection even if the copy was not deposited within
the time required by that subsection so long as the copy was deposited
before an annual general meeting is called and the annual general
meeting is called for a date 6 weeks or less after the copy has been
deposited.
(7) The trustee-manager of a registered business trust shall not be
bound under this section to circulate any statement if the court is, on
the application either of the trustee-manager or of any other person
who claims to be aggrieved, satisfied that the rights conferred by this
section are being abused to secure needless publicity for any
defamatory matter and the court may order the trustee-manager’s
costs on an application under this section to be paid in whole or in part
by the requisitionists, notwithstanding that the requisitionists are not
parties to the application.
(8) Notwithstanding anything in the trust deed of a registered
business trust, the business which may be dealt with at an annual
general meeting of the unitholders of the registered business trust shall
include any resolution of which notice is given in accordance with this
section, and for the purposes of this subsection, notice shall be deemed
to have been so given notwithstanding the accidental omission, in
giving it, of one or more unitholders of the registered business trust.
(9) Any trustee-manager of a registered business trust which
contravenes subsection (1), (3) or (4) shall be guilty of an offence.
[Companies 1994 Ed., s. 183]
Special resolutions
63.—
(1) A resolution shall be considered a special resolution when
it has been passed by the unitholders of a registered business trust
holding in the aggregate not less than three-fourths of the voting rights
of all the unitholders of the registered business trust who, being
entitled to do so, vote in person or, where proxies are allowed, by
proxy present at a general meeting of which not less than 21 days’
written notice specifying the intention to propose the resolution as a
special resolution has been duly given.
(2) Notwithstanding subsection (1), if it is so agreed by a majority in
number of the unitholders of a registered business trust having the
right to attend and vote at the meeting, being a majority which
together holds not less than 95% of the total voting rights that could be
exercised at that meeting, a resolution may be proposed and passed as
a special resolution at a meeting of which written notice of a period
less than that required under subsection (1) has been given.
(3) At any meeting at which a special resolution is submitted, a
declaration of the chairman that the resolution is carried shall, unless a
poll is demanded, be conclusive evidence of the fact without proof of
the number or proportion of the votes recorded in favour of or against
the resolution.
(4) At any meeting at which a special resolution is submitted, a poll
shall be deemed to be effectively demanded if demanded —
(a) by such number of unitholders of a registered business trust
for the time being entitled under the trust deed of the
registered business trust to vote at the meeting as is specified
in the trust deed, but it shall not in any case be necessary for
more than 5 unitholders to make the demand; or
(b) if no such provision is made by the trust deed, by 3
unitholders so entitled, or by one unitholder or 2
unitholders so entitled, if that unitholder holds or those 2
unitholders together hold not less than 10% of the total voting
rights of all the unitholders having a right to vote at the
meeting.
(5) In computing the majority on a poll demanded on the question
that a special resolution be passed, reference shall be had to the
number of votes cast for and against the resolution and to the number
of votes to which each unitholder is entitled by this Act or the trust
deed of the registered business trust.
[Companies 1994 Ed., s. 184]
Resolutions requiring special notice
64.—
(1) Subject to subsection (2), where by this Act special notice
is required of a resolution, the resolution shall not be effective
unless —
(a) notice of the intention to move it has been given to the trustee-
manager of a registered business trust not less than 28 days
before the meeting at which it is moved; and
(b) the trustee-manager of a registered business trust has given
the unitholders of the registered business trust notice of any
such resolution at the same time and in the same manner as it
gives notice of the meeting or, if that is not practicable, has
given them notice thereof, in any manner allowed by the trust
deed of the registered business trust, not less than 14 days
before the meeting.
(2) If a meeting is called for a date 28 days or less after notice of the
intention to move a resolution referred to in subsection (1) has been
given to the trustee-manager of the registered business trust, such
notice shall, although not given to the trustee-manager within the time
required by that subsection, be deemed to be properly given.
[Companies 1994 Ed., s. 185]
Registration and copies of certain resolutions
65.—
(1) Except as otherwise expressly provided in this Act, the
trustee-manager of a registered business trust shall lodge with the
Authority a copy of —
(a) every special resolution; and
(b) every resolution passed by any class of unitholders of the
registered business trust whether agreed to by all the
unitholders of that class or not,
within one month after the passing or making thereof.
(2) The trustee-manager of a registered business trust shall, at the
request of any unitholder of the registered business trust and without
charge, forward to the unitholder a copy of every resolution to which
this section applies.
(3) Any trustee-manager of a registered business trust which
contravenes subsection (1) or (2) shall be guilty of an offence and
shall be liable on conviction to a fine not exceeding $10,000 and, in
the case of a continuing offence, to a further fine not exceeding $1,000
for every day or part thereof during which the offence continues after
conviction.
[Companies 1994 Ed., s. 186]
Resolutions at adjourned meetings
66.
Where a resolution is passed at an adjourned meeting of the
unitholders of a registered business trust or of unitholders of any class
of units in the registered business trust, the resolution shall for all
purposes be treated as having been passed on the date on which it was
in fact passed and not on any earlier date.
[Companies 1994 Ed., s. 187]
Minutes of proceedings
67.—
(1) The trustee-manager of a registered business trust shall
cause —
(a) minutes of all proceedings of general meetings of the
unitholders of the registered business trust to be entered in
books kept for that purpose within one month of the date upon
which the relevant meeting was held; and
(b) those minutes to be signed by the chairman of the meeting at
which the proceedings were had or by the chairman of the
next succeeding meeting.
(2) Any minutes so entered that purports to be signed as provided in
subsection (1) shall be evidence of the proceedings to which they
relate, unless the contrary is proved.
(3) Where minutes have been so entered and signed, then, until the
contrary is proved —
(a) the meeting shall be deemed to have been duly held and
convened; and
(b) all proceedings had thereat shall be deemed to have been duly
had.
(4) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $25,000 and, in the case of
a continuing offence, to a further fine not exceeding $2,500 for every
day or part thereof during which the offence continues after
conviction.
[Companies 1994 Ed., s. 188]
Inspection of minute books
68.—
(1) The trustee-manager of a registered business trust shall —
(a) keep the books referred to in section 67(1) at the registered
office or the principal place of business in Singapore of the
trustee-manager; and
(b) make the books available for inspection by any unitholder of
the registered business trust without charge.
(2) The trustee-manager of a registered business trust shall, within
14 days after any unitholder of the registered business trust has made a
request in writing for a copy of any minutes specified in section 67(1),
furnish that unitholder with a copy of the minutes without charge.
(3) Any trustee-manager of a registered business trust which
contravenes subsection (1) or (2) shall be guilty of an offence and
shall be liable on conviction to a fine not exceeding $25,000 and, in
the case of a continuing offence, to a further fine not exceeding $2,500
for every day or part thereof during which the offence continues after
conviction.
[Companies 1994 Ed., s. 189]
Division 2 — Registers
Register of unitholders
69.—
(1) The trustee-manager of a registered business trust shall —
(a) keep and maintain, or cause to be kept and maintained, a
register of the unitholders of the registered business trust; and
(b) make that register available for inspection, without charge, by
any person during the business hours of the trustee-manager.
(2) The register referred to in subsection (1) shall contain —
(a) the name and address of each unitholder of the registered
business trust;
(b) the extent of holding by each unitholder of units in the
registered business trust;
(c) the date on which the name of each person was entered in the
register as a unitholder; and
(d) the date on which any person ceased to be a unitholder.
(3) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $25,000 and, in the case of
a continuing offence, to a further fine not exceeding $2,500 for every
day or part thereof during which the offence continues after
conviction.
(4) The trustee-manager of a registered business trust is not by
reason of anything done under Subdivision (1) of Division 2 of
Part VII of the Securities and Futures Act (Cap. 289) —
(a) to be taken for any purpose to have notice of; or
(b) to be put upon inquiry as to,
a right of a person to or in relation to a unit in the registered business
trust for the purposes of this section. [2/2009 wef 19/11/2012]
[SF (Offers of Investments) (Collective Investment Schemes) (Rg 2), r. 7 (1) (f) and (2)]
Place at which register is kept
70.—
(1) The trustee-manager of a registered business trust shall
keep the register referred to in section 69 at its registered office, but —
(a) if the work of making up the register is done at another office
of the trustee-manager in Singapore, the register may be kept
at that other office; or
(b) if the trustee-manager arranges with some other person to
make up the register on its behalf, the register may be kept at
the office of that other person at which the work is done if that
office is in Singapore.
(2) The trustee-manager of a registered business trust shall, within
14 days after the register is first kept at a place other than the registered
office, lodge with the Authority notice of the place where the register
is kept and shall, within 14 days after any change in the place at which
the register is kept, lodge with the Authority notice of the change.
(3) Any trustee-manager of a registered business trust which
contravenes subsection (1) or (2) shall be guilty of an offence and
shall be liable on conviction to a fine not exceeding $25,000 and, in
the case of a continuing offence, to a further fine not exceeding $2,500
for every day or part thereof during which the offence continues after
conviction.
[Companies 1994 Ed., s. 191]
Consequences of default by agent
71.
Where, by virtue of section 70(1)(b), the register of the
unitholders of a registered business trust is kept at the office of a
person other than the trustee-manager of the registered business trust
and, by reason of any default of that person, the trustee-manager fails
to comply with section 70(1) or (2) or any other provision of this Act
as to the production of the register, that person shall be liable to the
same penalties as if he were an officer of the trustee-manager in
accordance with section 109, and the power of the court under
section 102 shall extend to the making of orders against that other
person and his officers and employees.
[Companies 1994 Ed., s. 193]
Power of court to rectify register
72.—
(1) If —
(a) the name of any person is without sufficient cause entered in
or omitted from the register of the unitholders of a registered
business trust referred to in section 69(1); or
(b) default is made or unnecessary delay takes place in entering in
the register the fact of any person having ceased to be a
unitholder,
the person aggrieved or any unitholder or the trustee-manager of the
registered business trust, on behalf of the registered business trust,
may apply to the court for rectification of the register, and the court
may refuse the application or may order rectification of the register
and payment by the trustee-manager of any damages sustained by any
party to the application.
(2) On any application under subsection (1), the court may
decide —
(a) any question relating to the title of any person who is a party
to the application to have his name entered in or omitted from
the register of unitholders of a registered business trust
referred to in section 69(1), whether the question arises
between unitholders or alleged unitholders or between
unitholders or alleged unitholders on the one hand and the
trustee-manager of the registered business trust on the other
hand; and
(b) generally, any question necessary or expedient to be decided
for the rectification of the register.
(3) The court when making an order for rectification of a register of
the unitholders of a registered business trust shall by its order direct a
notice of the rectification to be so lodged with the Authority.
(4) No application for the rectification of a register of the
unitholders of a registered business trust in respect of an entry
which was made in the register more than 30 years before the date of
the application shall be entertained by the court.
[Companies 1994 Ed., s. 194]
Limitation of liability of trustee, etc., registered as holder of
units
73.—
(1) Any trustee, executor or administrator of the estate of any
deceased person who was registered in a register of the unitholders of
a registered business trust, referred to in section 69(1) and kept in
Singapore, as the holder of a unit in the registered business trust may
become registered as the holder of that unit as trustee, executor or
administrator of that estate and shall in respect of that unit be subject
to the same liabilities and no more as he would have been subject to if
the unit had remained registered in the name of the deceased person.
(2) Any trustee, executor or administrator of the estate of any
deceased person who was beneficially entitled to a unit in a registered
business trust (being a unit registered in a register of the unitholders of
the registered business trust referred to in section 69(1) and kept in
Singapore) may, with the consent of the trustee-manager of the
registered business trust on behalf of the registered business trust and
of the registered holder of that unit, become registered as the holder of
the unit as trustee, executor or administrator of that estate and shall in
respect of the unit be subject to the same liabilities and no more as he
would have been subject to if the unit had been registered in the name
of the deceased person.
(3) Units in a registered business trust registered in a register of the
unitholders of the registered business trust, referred to in section 69(1)
and kept in Singapore, and held by a trustee in respect of a particular
trust shall, at the request of the trustee, be marked in the register in
such a way as to identify them as being held in respect of the trust.
(4) Subject to this section, no notice of any trust expressed, implied
or constructive shall be entered in a register of the unitholders of a
registered business trust referred to in section 69(1) or be receivable
by the Authority and no liabilities shall be affected by anything done
in pursuance of subsection (1), (2) or (3) or pursuant to the law of any
other place which corresponds to this section and the trustee-manager
of the registered business trust concerned shall not be affected with
notice of any trust by anything so done.
[Companies 1994 Ed., s. 195]
Division 3 — Annual Return
Annual returns and information
74.—
(1) The trustee-manager of a registered business trust shall
lodge with the Authority, within one month after the annual general
meeting of the unitholders of the registered business trust, a return
containing such statements and particulars as may be prescribed by
the Authority.
(2) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $50,000 and, in the case of
a continuing offence, to a further fine not exceeding $5,000 for every
day or part thereof during which the offence continues after
conviction.
[Companies 1994 Ed., s. 197]
PART X
ACCOUNTS, AUDIT AND DISCLOSURE
Division 1 — Accounts
Accounting records and systems of control
75.—
(1) The trustee-manager of a registered business trust shall
cause to be kept such accounting records and other records as will
sufficiently explain the transactions by the trustee-manager entered
into on behalf of the registered business trust and financial position of
the registered business trust and enable true and fair accounts and any
documents required to be attached thereto to be prepared from time to
time, and shall cause those records to be kept in such manner as to
enable them to be conveniently and properly audited.
(2) The trustee-manager of a registered business trust shall retain the
records referred to in subsection (1) for a period of not less than 5
years from the end of the financial year in which the transactions or
operations to which those records relate are completed.
[2/2007 wef 01/03/2007]
(3) The trustee-manager of a registered business trust shall devise
and maintain a system of internal accounting controls sufficient to
provide a reasonable assurance that —
(a) assets that are part of the trust property of the registered
business trust are safeguarded against loss from unauthorised
use or disposition; and
(b) transactions by the trustee-manager entered into on behalf of
or purported to be entered into on behalf of the registered
business trust are properly authorised and that they are
recorded as necessary to permit the preparation of true and
fair accounts and to maintain accountability of assets.
(4) The records referred to in subsection (1) shall be kept at the
registered office of the trustee-manager of a registered business trust
or at such other place as it thinks fit and shall at all times be open to
inspection by the directors of the trustee-manager.
(5) If accounting records and other records are kept by the trustee-
manager of a registered business trust at a place outside Singapore, the
trustee-manager shall send to and keep at a place in Singapore, and
make available at all times for inspection by the directors of the
trustee-manager, such statements and returns with respect to the
business dealt with in the records so kept as will enable to be prepared
true and fair accounts and any documents required to be attached
thereto.
(6) The court may in any particular case order that the accounting
records and other records of a registered business trust be open to
inspection by a public accountant acting for a director of the trustee-
manager of the registered business trust, but only upon an undertaking
in writing given to the court that information acquired by the public
accountant during his inspection shall not be disclosed by him to any
person other than that director.
(7) Any trustee-manager of a registered business trust which
contravenes subsection (1), (2), (3), (4) or (5) shall be guilty of an
offence and shall be liable on conviction to a fine not exceeding
$100,000.
(8) Any officer of the trustee-manager who knowingly contravenes
or permits or authorises the contravention of this section shall be
guilty of an offence and shall be liable on conviction to a fine not
exceeding $50,000 or to imprisonment for a term not exceeding 12
months or to both.
[Companies 1994 Ed., s. 199]
Accounts and directors’ report
76.—
1) The trustee-manager of a registered business trust shall, at
a date not later than 18 months after the registration of the registered
business trust and subsequently at least once in every calendar year at
intervals of not more than 15 months, lay before the unitholders of the
registered business trust at their annual general meeting a profit and
loss account of the registered business trust for the period since the
preceding account (or in the case of the first account, since the
registration of the registered business trust) made up to a date —
(a) in the case of a registered business trust listed or quoted on a
securities exchange in Singapore, not more than 4 months
before the date of the meeting; and
(b) in the case of any other registered business trust, not more
than 6 months before the date of the meeting.
(2) The trustee-manager of a registered business trust shall ensure
that the profit and loss account referred to in subsection (1) gives a true
and fair view of the profit and loss of the registered business trust for
the period of accounting as shown in the accounting and other records
of the registered business trust.
(3) The Authority may, by order published in the Gazette, specify
such other period in substitution of the period referred to in
subsection (1)(a)or(b).
(4) Notwithstanding subsection (1), the Authority may, on
application by the trustee-manager of a registered business trust and
for any special reason it thinks fit, extend the periods of 18 months and
15 months referred to in that subsection and with respect to any year extend the period referred to in subsection (1)(a)or(b),
notwithstanding that the period is so extended beyond the calendar
year.
(5) The trustee-manager of a registered business trust shall cause to
be made out, and to be laid before the unitholders of the registered
business trust at their annual general meeting with the profit and loss
account required by subsection (1) —
(a) a balance sheet of the registered business trust as at the date to
which the profit and loss account is made up, being a balance
sheet that gives a true and fair view of the state of affairs of the
registered business trust as at the end of the period to which it
relates; and
(b) a cash flow statement of the registered business trust that
gives a true and fair view of the cash flow of the business of
the registered business trust for the period of accounting of the
profit and loss account referred to in subsection (1).
(6) The trustee-manager of a registered business trust shall, before
the profit and loss account, balance sheet and cash flow statement
referred to in subsections (1) and (5) are made out, take reasonable
steps —
(a)to—
(i) ascertain what action has been taken in relation to the
writing off of bad debts and the making of provisions
for doubtful debts; and
(ii) cause all known bad debts to be written off and
adequate provision to be made for doubtful debts;
(b) to ascertain whether any current assets (other than current
assets to which paragraph (a) applies) are unlikely to realise in
the ordinary course of business their value as shown in the
accounting records of the registered business trust and, if so,
to cause —
(i) those assets to be written down to an amount which
they might be expected so to realise; or
(ii) adequate provision to be made for the difference
between the amount of the value as so shown and the
amount that they might be expected so to realise; and
(c) to ascertain whether any non-current asset is shown in the
books of the registered business trust at an amount which,
having regard to its value to the registered business trust as a
going concern, exceeds the amount which would be
recoverable over its useful life or on its disposal and
(unless adequate provision for writing down that asset is
made) to cause to be included in the accounts such
information and explanations as will prevent the accounts
from being misleading by reason of the overstatement of the
amount of that asset.
(7) The trustee-manager of a registered business trust shall cause —
(a) the accounts referred to in subsection (9) to be duly audited
before they are laid before the unitholders of the registered
business trust at their annual general meeting as required by
this section; and
(b) the auditor’s report required by section 84 to be attached to or
endorsed upon those accounts.
(8) The trustee-manager of a registered business trust shall —
(a) take reasonable steps to ensure that the accounts referred to in
subsection (9) are audited as required by this Part not less than
14 days before the annual general meeting of the unitholders
of the registered business trust; and
(b) cause to be attached to the accounts the auditor’s report that is
furnished to the trustee-manager of the registered business
trust under section 84(2).
(9) In subsections (7) and (8), “accounts” means the profit and loss
account, balance sheet and cash flow statement of a registered
business trust required to be laid before the unitholders of the
registered business trust at the annual general meeting under
subsections (1) and (5).
(10) The trustee-manager of a registered business trust shall cause to
be attached to every balance sheet of the registered business trust
made out under subsection (5) a report —
(a) containing the information required in subsections (11), (12),
(15) and (17) and any other information as may be prescribed
by the Authority;
(b) made in accordance with a resolution of the directors of the
trustee-manager; and
(c) signed by not fewer than 2 of the directors with respect to the
profit or loss of the registered business trust for the financial
year and the state of the affairs of the registered business trust
as at the end of the financial year.
(11) The report to which subsection (10) relates shall state with
appropriate details —
(a) the names of all directors of the trustee-manager of the
registered business trust in office at the date of the report;
(b) whether —
(i) at the end of the financial year to which the report
relates, there subsists any arrangement to which the
trustee-manager is a party, being an arrangement
whose object is to enable any director or all directors
of the trustee-manager to acquire benefits by means of
the acquisition of units in, or debentures of, the
registered business trust; or
(ii) there have, at any time in that year, subsisted such an
arrangement as aforesaid to which the trustee-manager
was a party,
and if so, the report shall contain a statement explaining the
effect of the arrangement and giving the names of the persons
who at any time in that year were directors of the trustee-
manager and held, or whose nominees held, units in, or
debentures of, the registered business trust acquired in
pursuance of the arrangement; and
(c) as respects each person who, at the end of the financial year to
which the report relates, was a director of the trustee-
manager —
(i) whether or not he was, at the end of that financial year,
interested in units in, or debentures of, the registered
business trust, or both, and, if he was, the number and
amount of units in, or debentures of, the registered
business trust, or both, in which he was then interested;
and
(ii) whether or not he was, at the beginning of that year (or,
if he was not then a director, when he became a
director), interested in units in, or debentures of, the
registered business trust, or both, and, if he was, the
number and amount of units in, or debentures of, the
registered business trust, or both, in which he was
interested at the beginning of that year or when he
became a director, as the case may be.
(12) The report referred to in subsection (10) shall also contain such
additional information as the Authority may prescribe, being
information which the Authority considers necessary to facilitate an
understanding by the unitholders of the registered business trust of the
business of the registered business trust.
(13) For the avoidance of doubt, the additional information referred
to in subsection (12) need not relate to the profit or loss or the state of
affairs of the registered business trust referred to in subsection (10).
(14) Every statement, report or other document relating to the state
of affairs of a registered business trust attached to, or included with, a
report of the directors of the trustee-manager of a registered business
trust laid before the unitholders of the registered business trust at their
general meeting or sent to the unitholders under section 78 (not being
a statement, report or document required by this Act to be laid before
the unitholders in general meeting) shall, for the purposes of
section 108, be deemed to be part of that last-mentioned report.
(15) Where the trustee-manager of a registered business trust has
granted an option to any person to acquire unissued units in the
registered business trust, the report required by subsection (10) shall
state —
(a) the number and class of the units in respect of which the
option has been granted;
(b) the date of expiration of the option; and
(c) the basis upon which the option may be exercised.
(16) Where any of the particulars required by subsection (15) has
been stated in a previous report, it may be stated by reference to that
report.
(17) Each report required by subsection (10) shall specify —
(a) particulars of units issued during the period to which the
report relates by virtue of the exercise of options to acquire
unissued units in the registered business trust, whether
granted before or during that period; and
(b) the number and class of unissued units in the registered
business trust under option as at the end of that period, the
price, or method of fixing the price, of issue of those units,
and the date of expiration of the option.
(18) The trustee-manager of a registered business trust shall include
with every balance sheet, profit and loss account and cash flow
statement laid before the unitholders of the registered business trust in
general meeting, before the auditor reports on the accounts under this
Part, a statement made in accordance with a resolution of the directors
of the trustee-manager and signed by not fewer than 2 of the directors,
stating whether in their opinion —
(a) the profit and loss account is drawn up so as to give a true and
fair view of the results of the business of the registered
business trust for the period covered by the account;
(b) the balance sheet is drawn up so as to exhibit a true and fair
view of the state of affairs of the registered business trust as at
the end of that period;
(c) the cash flow statement is drawn up so as to exhibit a true and
fair view of the cash flow of the business of the registered
business trust for the period covered by the statement; and
(d) at the date of the statement there are reasonable grounds to
believe that the trustee-manager will be able to fulfil, out of
the trust property of the registered business trust, the liabilities
of the registered business trust as and when they fall due.
(19) Any trustee-manager of a registered business trust which
contravenes subsection (1), (2), (5), (6), (7), (8), (10) or (18) shall be
guilty of an offence and shall be liable on conviction to a fine not
exceeding $100,000 and, in the case of a continuing offence, to a
further fine not exceeding $10,000 for every day or part thereof during
which the offence continues after conviction.
[Companies 1994 Ed., s. 201]
Relief from requirements as to form and content of accounts
and reports
77.—
(1) The trustee-manager of a registered business trust may
apply to the Authority in writing for an order relieving the trustee-
manager from any requirement of this Act relating to the form and
content of accounts or to the form and content of the report required by
section 76(11) and the Authority may make such an order either
unconditionally or on condition that the trustee-manager complies
with such other requirements relating to the form and content of the
accounts or report as the Authority thinks fit to impose.
(2) The Authority may, where it considers it appropriate, make an
order in respect of a specified class of registered business trusts
relieving the trustee-manager of a registered business trust in that class
from compliance with any specified requirements of this Act relating
to the form and content of accounts or to the form and content of the
report required by section 76(11) and the order may be made either
unconditionally or on condition that the trustee-manager comply with
such other requirements relating to the form and content of accounts
or report as the Authority thinks fit to impose.
(3) The Authority shall not make an order under subsection (1)
unless it is of the opinion that compliance with the requirements of this
Act would render the accounts or report, as the case may be,
misleading or inappropriate to the circumstances of the registered
business trust or would impose unreasonable burdens on the trustee-
manager of the registered business trust or any officer of the trustee-
manager.
(4) The Authority may make an order under subsection (1) which
may be limited to a specific period and may, from time to time, either
on application by the trustee-manager of the registered business trust
or without any such application (in which case the Authority shall give
to the trustee-manager an opportunity of being heard) revoke or
suspend the operation of any such order.
[Companies 1994 Ed., s. 202]
Unitholders of registered business trust entitled to balance
sheet, etc.
78.—
(1) The trustee-manager of a registered business trust shall, not
less than 14 days before the date of a general meeting of the
unitholders of the registered business trust, send to all the unitholders
entitled to receive notice of general meetings of the unitholders of the
registered business trust a copy of every profit and loss account,
balance sheet and cash flow statement of the registered business trust
(including every document required under this Act to be attached
thereto), which is duly audited and which is to be laid before the
unitholders in general meeting, accompanied by —
(a) a copy of the auditor’s report thereon; and
(b) the financial statements of the trustee-manager prepared in
accordance with section 201 of the Companies Act (Cap. 50).
[Act 35 of 2014 wef 01/07/2015]
(2) The trustee-manager of a registered business trust shall, without
charge and on a request made by any unitholder of the registered
business trust (whether he is or is not entitled to have sent to him
copies of the profit and loss accounts and balance sheets) to whom
copies of the profit and loss account and balance sheet of the
registered business trust (including every document required by this
Act to be attached thereto) for the financial year immediately
preceding the then current financial year have not been sent, furnish
to the unitholder such copies of the profit and loss account and balance
sheet, together with a copy of the auditor’s report thereon.
(3) Any trustee-manager of a registered business trust which
contravenes subsection (1) or (2) shall be guilty of an offence and
shall be liable on conviction to a fine not exceeding $50,000 and, in
the case of a continuing offence, to a further fine not exceeding $5,000
for every day or part thereof during which the offence continues after
conviction.
[Companies 1994 Ed., s. 203]
Provision of summary financial statement to unitholders
79.—
(1) Notwithstanding section 78 and anything in the trust deed
of a registered business trust the units of which are listed on the
securities exchange, the trustee-manager of the registered business
trust may, in such cases as may be prescribed by the Authority and
provided all the conditions imposed thereunder by the Authority are
complied with, send a summary financial statement of the registered
business trust complying with the requirements of subsections (4) and
(5) instead of copies of the documents referred to in section 78(1) to
the unitholders of the listed registered business trust.
(2) Where the trustee-manager of a listed registered business trust
sends to the unitholders of the listed registered business trust a
summary financial statement under subsection (1), any of the
unitholders entitled to be furnished with a copy of the documents
referred to in section 78(2) by the trustee-manager may instead request
for a summary financial statement from the trustee-manager, and the
trustee-manager shall send the summary financial statement to the
requesting unitholder.
(3) The trustee-manager of a listed registered business trust need not
send a summary financial statement to any unitholder of the listed
registered business trust who does not wish to receive the statement.
(4) The trustee-manager of a listed registered business trust shall
send the documents referred to in section 78(1) to any unitholder of
the listed registered business trust who wishes to receive such
documents.
(5) The summary financial statement referred to in subsection (1) —
(a) shall be derived from the annual accounts of the listed
registered business trust and the report of the directors of the
trustee-manager of the listed registered business trust; and
(b) shall be in such form and contain such information as may be
specified by regulations.
(6) Every summary financial statement referred to in subsection (1)
shall —
(a) state that it is only a summary of information in the annual
accounts of the listed registered business trust and report of
the directors of the trustee-manager of the listed registered
business trust; and
(b) contain a statement by the auditors of the listed registered
business trust of their opinion as to whether the summary
financial statement is consistent with the accounts and the
report and complies with the requirements of this section and
any regulations made under subsection (8).
(7) Any trustee-manager of a listed registered business trust which
contravenes this section or any regulations made under subsection (8)
shall be guilty of an offence and shall be liable on conviction to a fine
not exceeding $50,000 and, in the case of a continuing offence, to a
further fine not exceeding $5,000 for every day or part thereof during
which the offence continues after conviction.
(8) The Authority may make regulations to give effect to this
section, including making provision as to the manner in which it is to
be ascertained whether a unitholder of a listed registered business trust
wishes to receive copies of the documents referred to in section 78(1)
or does not wish to receive the summary financial statement under this
section.
(9) In this section, “listed registered business trust” means a
registered business trust that has been admitted to the official list of
a securities exchange in Singapore and has not been removed from
that list.
[Companies 1994 Ed., s. 203A]
Penalty
80.—
(1) If any director of the trustee-manager of a registered
business trust —
(a) fails to take all reasonable steps to secure compliance by the
trustee-manager with any provision of this Division; or
(b) has by his own wilful act been the cause of any contravention
by the trustee-manager of any provision of this Division,
he shall be guilty of an offence and shall be liable on conviction to a
fine not exceeding $100,000 or to imprisonment for a term not
exceeding 2 years or to both.
(2) In any proceedings against a person for failure to take all
reasonable steps to comply with, or to secure compliance with, the
preceding provisions of this Division relating to the form and content
of the accounts of a registered business trust by reason of an omission
from the accounts, it shall be a defence for him to prove that the
omission was not intentional and that the information omitted was
immaterial and did not affect the giving of a true and fair view of the
matters required by section 76 to be dealt with in the accounts.
(3) If an offence under this section is committed with intent to
defraud any creditor of the registered business trust or any creditor of
any other person or for a fraudulent purpose, the offender shall be
liable on conviction to a fine not exceeding $250,000 or to
imprisonment for a term not exceeding 7 years or to both.
(4) No person shall be sentenced to imprisonment for any offence
under this section unless, in the opinion of the court dealing with the
case, the offence was committed wilfully.
[Companies 1994 Ed., s. 204]
Division 2 — Audit
Auditors
81.—
(1) A person shall not consent in writing to be appointed, and
shall not knowingly act, as auditor for any registered business trust
and shall not prepare, for or on behalf of a registered business trust,
any report required by this Act to be prepared by an auditor of the
registered business trust —
(a) if he is not a public accountant;
(b) if he is indebted to the trustee-manager of the registered
business trust or to a related corporation of the trustee-
manager in an amount exceeding $2,500;
(c)ifheis—
(i) an officer of the trustee-manager;
(ii) a partner, an employer or an employee of an officer of
the trustee-manager; or
(iii) a partner or an employee of an employee of an officer
of the trustee-manager; or
(d) if he is responsible for or if he is the partner, employer or
employee of a person responsible for the keeping of the
register of unitholders of the registered business trust.
(2) Any person who contravenes subsection (1) shall be guilty of an
offence.
(3) For the purposes of subsection (1), a person shall be deemed to
be an officer of the trustee-manager of a registered business trust if he
is an officer of a related corporation of the trustee-manager except
where the Authority, if it thinks fit in the circumstances of the case,
directs otherwise, if he has, at any time within the preceding period of
12 months, been an officer or a promoter of the trustee-manager or of
such a corporation.
(4) For the purposes of this section, a person shall not be deemed to
be an officer by reason only of his having been appointed as auditor of
a trustee-manager or auditor of a registered business trust.
(5) An accounting firm shall not consent in writing to be appointed,
and shall not knowingly act, as auditor for a registered business trust
and shall not prepare, for or on behalf of a registered business trust,
any report required by this Act to be prepared by an auditor of the
registered business trust if any partner of the firm (whether or not he is
a public accountant) is a person described in subsection (1)(b), (c)
or (d).
(6) If an accounting firm contravenes subsection (5), every partner
of the firm shall be guilty of an offence.
(7) An accounting corporation shall not consent in writing to be
appointed, and shall not knowingly act, as auditor for a registered
business trust and shall not prepare, for or on behalf of a registered
business trust, any report required by this Act to be prepared by an
auditor of the registered business trust if —
(a) any director of the corporation (whether or not he is a public
accountant); or
(b) any employee of the corporation, who is a public accountant
and practising as such in that corporation, is a person
described in subsection (1)(b), (c)or(d).
(8) If an accounting corporation contravenes subsection (7) —
(a) the corporation; and
(b) the director or employee who caused the contravention,
shall be guilty of an offence.
(9) No trustee-manager of a registered business trust or person shall
appoint any individual as auditor of the registered business trust
unless the individual has prior to such appointment consented in
writing to act as auditor of that registered business trust.
(10) No trustee-manager of a registered business trust or person
shall appoint any accounting firm or accounting corporation as auditor
of the registered business trust unless the firm or corporation has prior
to such appointment consented, in writing under the hand of at least
one partner of the firm or director of the corporation, as the case may
be, to act as auditor of that registered business trust.
(11) Where an accounting firm is appointed as the auditor of a
registered business trust in the name of the firm, such appointment
shall take effect and operate as if the partners of the firm at the time of
the appointment, who are public accountants at that time, have been
appointed as auditors of the registered business trust.
(12) Where an accounting corporation is appointed as the auditor of
a registered business trust in the name of the corporation, such
appointment shall take effect and operate as if the directors and
employees of the corporation who are practising as public accountants
in that corporation have been appointed as auditors of the registered
business trust.
(13) Subsection (12) shall apply to a director or an employee
practising as a public accountant in an accounting corporation, even if
his appointment as director or employment with the corporation
commenced after the date on which the corporation was appointed as
auditor of the registered business trust.
(14) In this section —
“accounting corporation” means a company approved or deemed
to be approved as an accounting corporation under the
Accountants Act (Cap. 2);
“accounting firm” means a firm approved or deemed to be
approved as an accounting firm under the Accountants Act.
[Companies 1994 Ed., s. 10]
Appointment of auditor
82.—
(1) The trustee-manager of a registered business trust shall,
within 3 months after registration of the registered business trust by
the Authority under section 4, appoint a person or persons nominated
by the audit committee of the registered business trust to be the auditor
or auditors of the registered business trust, and any auditor or auditors
so appointed shall, subject to this section, hold office until the
conclusion of the first annual general meeting of the unitholders of the
registered business trust.
(2) The unitholders of a registered business trust shall, at each
annual general meeting of the unitholders of the registered business
trust, by a resolution passed by unitholders holding in the aggregate a
majority of the voting rights of all the unitholders of the registered
business trust who, being entitled to do so, vote in person or, where
proxies are allowed, by proxy, appoint a person or persons nominated
by the audit committee of the registered business trust to be the auditor
or auditors of the registered business trust, and any auditor or auditors
so appointed shall, subject to this section, hold office until the
conclusion of the next annual general meeting of the unitholders of the
registered business trust.
(3) Subject to subsections (7) and (8), the trustee-manager of a
registered business trust may appoint a public accountant nominated
by the audit committee of the registered business trust to fill any
vacancy in the office of auditor of the registered business trust, but
while such a vacancy continues, the surviving or continuing auditor or
auditors, if any, may act as such auditor or auditors.
(4) An auditor of a registered business trust may be removed from
office by a resolution passed by unitholders holding in the aggregate a
majority of the voting rights of all the unitholders of the registered
business trust who, being entitled to do so, vote in person or, where
proxies are allowed, by proxy, at a general meeting of which special
notice has been given, but not otherwise.
(5) Where special notice of a resolution to remove an auditor is
received by the trustee-manager on behalf of a registered business
trust —
(a) the trustee-manager shall immediately send a copy of the
notice to the auditor concerned and to the Authority; and
(b) the auditor may, within 7 days after the receipt by him of the
copy of the notice, make representations in writing to the
trustee-manager and request that, prior to the meeting at
which the resolution is to be considered, a copy of the
representations be sent by the trustee-manager to every
unitholder of the registered business trust to whom notice of
the meeting is sent.
(6) Unless the Authority, on the application of the trustee-manager
of a registered business trust, orders otherwise, the trustee-manager
shall send a copy of the representations referred to in
subsection (5)(b) as so requested and the auditor may, without
prejudice to his right to be heard orally, require that the representations
be read out at the meeting.
(7) Where an auditor of a registered business trust is removed from
office under subsection (4) at a general meeting of the unitholders of
the registered business trust —
(a) the unitholders of the registered business trust may, at the
meeting and by a resolution passed by unitholders holding in
the aggregate not less than three-fourths of the voting rights of
all the unitholders of the registered business trust who, being
entitled to do so, vote in person or, where proxies are allowed,
by proxy, immediately appoint another person nominated by
the audit committee of the registered business trust as auditor;
or
(b) the meeting may be adjourned to a date not earlier than 20
days and not later than 30 days after the meeting and the
unitholders of the registered business trust may, by resolution
passed by unitholders holding in the aggregate a majority of
the voting rights of all the unitholders of the registered
business trust who, being entitled to do so, vote in person or,
where proxies are allowed, by proxy, appoint another person
nominated by the audit committee of the registered business
trust as auditor.
(8) Any trustee-manager of a registered business trust shall,
immediately after the removal of an auditor from office under
subsection (4), give notice in writing of the removal to the Authority
and, if the unitholders of the registered business trust do not appoint
another auditor under subsection (7), the Authority shall appoint an
auditor.
(9) An auditor appointed under subsection (7) or (8) shall, subject to
this section, hold office until the conclusion of the next annual general
meeting of the unitholders of the registered business trust.
(10) If the trustee-manager of a registered business trust does not
appoint an auditor or auditors as required by this section, the
Authority may, on the application in writing of any unitholder of the
registered business trust, make the appointment.
(11) The trustee-manager of a registered business trust shall, not less
than 14 days before the annual general meeting of the unitholders of
the registered business trust or the adjourned meeting under
subsection (7)(b), give notice of the nomination made by the audit
committee of the registered business trust to —
(a) the person so nominated;
(b) each auditor, if any, of the registered business trust; and
(c) each person entitled to receive notice of general meetings of
the unitholders of the registered business trust.
(12) An auditor of a registered business trust may resign —
(a) if he is not the sole auditor of the registered business trust; or
(b) at a general meeting of the unitholders of the registered
business trust,
but not otherwise.
(13) If an auditor of a registered business trust gives notice in
writing to the trustee-manager of the registered business trust that he
desires to resign, the trustee-manager shall, as soon as is practicable,
call a general meeting of the unitholders of the registered business
trust for the purpose of appointing an auditor in place of the auditor
who desires to resign and on the appointment of another auditor, the
resignation of the first-mentioned auditor shall take effect.
(14) The fees and expenses of an auditor of a registered business
trust —
(a) in the case of an auditor appointed by the unitholders of the
registered business trust at a general meeting, shall be fixed
by the unitholders in general meeting or, if so authorised by
the unitholders of the registered business trust at the last
preceding annual general meeting, by the trustee-manager of
the registered business trust; and
(b) in the case of an auditor appointed by the trustee-manager of
the registered business trust or by the Authority, may be fixed
by the trustee-manager of the registered business trust or by
the Authority, as the case may be, and, if not so fixed, shall be
fixed as provided in paragraph (a) as if the auditor had been
appointed by the unitholders of the registered business trust.
(15) Any person who contravenes subsection (1), (5), (6), (8), (11),
(12) or (13) shall be guilty of an offence.
[Companies 1994 Ed., s. 205]
Auditors’ remuneration
83.—
(1) If the trustee-manager of a registered business trust is
served with a notice sent by or on behalf of —
(a) at least 5% of the total number of unitholders of the registered
business trust; or
(b) the unitholders holding in aggregate not less than 5% of the
total voting rights of all the unitholders of the registered
business trust,
requiring particulars of all emoluments paid to or receivable by the
auditor of the registered business trust or any person who is a partner
or an employer or an employee of the auditor, by or from the trustee-
manager in respect of services other than auditing services rendered in
relation to the registered business trust, the trustee-manager shall
immediately —
(i) prepare or cause to be prepared a statement showing
particulars of all emoluments paid to the auditor or other
person and of the services in respect of which the payments
have been made for the financial year immediately preceding
the service of such notice;
(ii) forward a copy of the statement to all the unitholders entitled
to receive notice of general meetings of the unitholders of the
registered business trust; and
(iii) lay such statement before the unitholders in general meeting.
(2) Without prejudice to subsection (1), the trustee-manager of a
registered business trust shall, under prescribed circumstances,
undertake a review of the fees, expenses and emoluments of the
auditor of the registered business trust to determine whether the
independence of the auditor has been compromised, and the outcome
of the review shall be sent to all persons entitled to receive notice of
general meetings of the unitholders of the registered business trust.
(3) Any trustee-manager of a registered business trust which
contravenes subsection (1) or (2) shall be guilty of an offence.
[Companies 1994 Ed., s. 206]
Powers and duties of auditors as to reports on accounts
84.—
(1) An auditor of a registered business trust shall report to the
unitholders of the registered business trust on the accounts required to
be laid before the unitholders in general meeting and on the
accounting and other records of the registered business trust
relating to those accounts.
(2) A report by an auditor of a registered business trust under
subsection (1) shall be furnished by the auditor to the trustee-manager
of the registered business trust in sufficient time to enable the trustee-
manager to comply with the requirements of section 78(1) in relation
to that report, but no offence shall be committed by an auditor under
this subsection if the trustee-manager has not submitted the accounts
for audit as required under this Part in sufficient time, having regard to
the complexity of the accounts, for the auditor to make his report.
(3) An auditor of a registered business trust shall, in a report under
this section, state —
(a) whether the accounts, in his opinion —
(i) give a true and fair view of the matters required by
section 76 to be dealt with in the accounts; and
(ii) are in accordance with this Act so as —
(A) in the case of a balance sheet, to give a true and
fair view of the state of affairs of the registered
business trust;
(B) in the case of a profit and loss account, to give a
true and fair view of the profit or loss of the
registered business trust; and
(C) in the case of a cash flow statement, to give a true
and fair view of the cash flow of the business of
the registered business trust;
(b) whether the accounting and other records required by this Act
to be kept by the trustee-manager of the registered business
trust have been, in his opinion, properly kept in accordance
with this Act;
(c) any defect or irregularity in the accounts and any matter not
set out in the accounts without regard to which a true and fair
view of the matters dealt with by the accounts would not be
obtained; and
(d) if he is not satisfied as to any matter referred to in
paragraph (a)or(b), his reasons for not being so satisfied.
(4) It shall be the duty of an auditor of a registered business trust to
form an opinion as to —
(a) whether he has obtained all the information and explanations
that he required; and
(b) whether proper accounting and other records have been kept
by the trustee-manager of the registered business trust as
required by section 75 of this Act,
and he shall state in his report particulars of any deficiency, failure or
short-coming in respect of any matter referred to in this subsection.
(5) An auditor of a registered business trust —
(a) shall have right of access at all times to the accounting and
other records, including registers, of the registered business
trust; and
(b) shall be entitled to require from any officer of the trustee-
manager of the registered business trust and any auditor of a
related corporation of the trustee-manager such information
and explanations as the auditor may desire for the purposes of
audit.
(6) The auditor’s report shall —
(a) be attached to or endorsed on the accounts;
(b) if any unitholder of the registered business trust so requires,
be read before the unitholders of the registered business trust
in general meeting; and
(c) be open to inspection by any unitholder of the registered
business trust at any reasonable time.
(7) An auditor of a registered business trust or his agent authorised
by him in writing for the purpose shall be entitled —
(a) to attend any general meeting of the unitholders of the
registered business trust;
(b) to receive all notices of, and other communications relating
to, any general meeting which a unitholder of the registered
business trust is entitled to receive; and
(c) to be heard at any general meeting which he attends on any
part of the business of the meeting which concerns the auditor
in his capacity as auditor of the registered business trust.
(8) If an auditor of a registered business trust, in the course of the
performance of his duties as auditor of the registered business trust, is
satisfied that —
(a) there has been a breach or non-observance of any of the
provisions of this Act; and
(b) the circumstances are such that in his opinion the matter has
not been or will not be adequately dealt with by comment in
his report on the accounts or by bringing the matter to the
notice of the board of directors of the trustee-manager of the
registered business trust,
he shall immediately report the matter in writing to the Authority.
(9) Notwithstanding subsection (8), if an auditor of a registered
business trust, in the course of the performance of his duties as auditor,
has reason to believe that a serious offence involving fraud or
dishonesty is being or has been committed in relation to the registered
business trust by officers or employees of the trustee-manager of the
registered business trust, he shall immediately report the matter to the
Minister.
(10) No duty to which an auditor of a registered business trust may
be subject shall be regarded as having been contravened by reason of
his reporting the matter referred to in subsection (9) in good faith to
the Minister.
(11) In subsection (9), “a serious offence involving fraud or
dishonesty” means an offence —
(a) that is punishable by imprisonment for a term that is not less
than 2 years; and
(b) in respect of which the value of the property obtained or likely
to be obtained from the commission thereof is not less than
$20,000.
(12) Any officer of the trustee-manager of a registered business trust
who refuses or fails to allow an auditor of the registered business trust
access, in accordance with this section, to any accounting and other
records, including registers, of the registered business trust in his
custody or control or to give any information or explanation as and
when required under this section, or otherwise hinders, obstructs or
delays an auditor in the performance of his duties or the exercise of his
powers, shall be guilty of an offence.
[Companies 1994 Ed., s. 207]
Auditors and other persons to enjoy qualified privilege in
certain circumstances
85.—
(1) An auditor of a registered business trust shall not, in the
absence of malice on his part, be liable to any action for defamation at
the suit of any person in respect of any statement which he makes in
the course of his duties as auditor, whether the statement is made
orally or in writing.
(2) A person shall not, in the absence of malice on his part and in the
course of his duties, be liable to any action for defamation at the suit of
any other person in respect of the publication of any document
prepared by an auditor of a registered business trust and required by
this Act to be lodged with the Authority.
(3) This section shall not limit or affect any other right, privilege or
immunity that an auditor or any other person has as defendant in an
action for defamation.
[Companies 1994 Ed., s. 208]
Division 3 — Disclosure
Certification by chief executive officer and board of directors of
trustee-manager
86.—
(1) Subject to subsections (4) and (5), the trustee-manager of a
registered business trust shall —
(a) cause the written statements required by subsections (2) and
(3) to be made out in accordance with those subsections; and
(b) ensure that the written statements referred to in paragraph (a)
are annexed to the profit and loss account of the registered
business trust required under section 76(1).
(2) Subject to subsection (4), the board of directors of the trustee-
manager of a registered business trust shall make a written statement,
in accordance with a resolution of the board of directors of the trustee-
manager and signed by not less than 2 directors on behalf of the board
of directors, certifying that —
(a) fees or charges paid or payable out of the trust property of the
registered business trust to the trustee-manager are in
accordance with the trust deed of the registered business trust;
(b) interested person transactions are not detrimental to the
interests of all the unitholders of the registered business trust
as a whole based on the circumstances at the time of the
transaction; and
(c) the board of directors of the trustee-manager is not aware of
any violation of duties of the trustee-manager which would
have a materially adverse effect on the business of the
registered business trust or on the interests of all the
unitholders of the registered business trust as a whole.
(3) Subject to subsection (5), the chief executive officer of the
trustee-manager of a registered business trust shall, in his personal
capacity, make a written statement certifying that he is not aware of
any violation of duties of the trustee-manager which would have a
materially adverse effect on the business of the registered business
trust or on the interests of all the unitholders of the registered business
trust as a whole.
(4) Where the board of directors of the trustee-manager of a
registered business trust is unable to provide a written statement in
accordance with subsection (2), for the reason that —
(a) the board of directors is of the opinion that the assertions
referred to in subsection (2) are not true; or
(b) there is a divergence of views among the directors of the
trustee-manager as to the accuracy of the assertions referred to
in subsection (2),
the trustee-manager need not annex the written statement required by
subsection (2) to the profit and loss account of the registered business
trust required under section 76(1), but the board of directors shall
provide an explanation, including the important factors for the
inability to provide such a written statement, and such explanation
shall be annexed by the trustee-manager to the profit and loss account
of the registered business trust required under section 76(1).
(5) Where the chief executive officer of the trustee-manager of a
registered business trust is unable to provide a written statement in
accordance with subsection (3) for the reason that he is of the opinion
that the assertion referred to in subsection (3) is not true, the trustee-
manager need not annex the written statement required by
subsection (3) to the profit and loss account of the registered
business trust required under section 76(1), but the chief executive
officer of the trustee-manager shall provide an explanation, including
the important factors for his inability to provide such a written
statement, and such explanation shall be annexed by the trustee-
manager to the profit and loss account of the registered business trust
required under section 76(1).
(6) Any person who contravenes subsection (1), (2), (3), (4) or (5)
shall be guilty of an offence and shall be liable on conviction to a fine
not exceeding $100,000.
(7) If the board of directors of the trustee-manager of a registered
business trust makes a written statement referred to in subsection (2)
without any reasonable basis for arriving at the conclusions as set
forth in the statement, any director of the trustee-manager who permits
or authorises the statement to be made shall be guilty of an offence and
shall be liable on conviction to a fine not exceeding $100,000 or to
imprisonment for a term not exceeding 2 years or to both.
(8) If the chief executive officer of the trustee-manager of a
registered business trust makes a written statement referred to in
subsection (3) without any reasonable basis for arriving at the
conclusions as set forth in the statement, the chief executive officer
shall be guilty of an offence and shall be liable on conviction to a fine
not exceeding $100,000 or to imprisonment for a term not exceeding 2
years or to both.
(9) For the purposes of this section, a person or group of persons is
deemed to have an interest in shares or units, as the case may be, if that
person or group of persons is deemed to have an interest in the shares
or units, as the case may be, under section 4 of the Securities and
Futures Act (Cap. 289).
(10) In this section —
“associate”—
(a) in relation to an individual who is a director, chief
executive officer or controlling shareholder of the
trustee-manager of a registered business trust or a
controlling unitholder of a registered business trust,
means —
(i) his immediate family;
(ii) a trustee, when acting in his capacity as such
trustee, of any trust of which the individual or his
immediate family is a beneficiary or, in the case
of a discretionary trust, is a discretionary object;
or
(iii) any corporation in which he and his immediate
family together (whether directly or indirectly)
have an interest in shares entitling the beneficial
owners thereof the right to cast, whether by
proxy or in person, not less than 30% of the total
votes able to be cast at a general meeting of the
corporation; and
(b) in relation to a corporation which is a controlling
shareholder of the trustee-manager of a registered
business trust or a controlling unitholder of a
registered business trust, means any corporation which
is its related corporation or associated company;
“associated company”, in relation to a corporation, means —
(a) any corporation in which the corporation or its
subsidiary has, or the corporation and its subsidiary
together have, an interest in shares entitling the
beneficial owners thereof the right to cast, whether by
proxy or in person, not less than 20% but not more than
50% of the total votes able to be cast at a general
meeting of the corporation; or
(b) any corporation, other than a subsidiary of the
corporation or a corporation which is an associated
company by virtue of paragraph (a), the policies of
which the corporation or its subsidiary, or the
corporation together with its subsidiary, is able to
control or influence materially;
“chief executive officer”, in relation to the trustee-manager of a
registered business trust, means any person, by whatever
name described, who is —
(a) in the direct employment of, acting for or by
arrangement with, the trustee-manager of a registered
business trust; and
(b) principally responsible for the management and conduct
of the trustee-manager;
“control”, in relation to a corporation, means the capacity to
determine the outcome of decisions on the financial and
operating policies of the corporation, having regard to the
following considerations:
(a) the practical influence which can be exerted (rather than
the rights which can be enforced); and
(b) any practice or pattern of behaviour affecting the
financial and operating policies of the corporation
(even if it involves a breach of an agreement or a
breach of trust),
but excludes any capacity to influence decisions on the
financial and operating policies of a corporation where such
influence is required to be exercised for the benefit of other
persons pursuant to an obligation imposed under any written
law, rule of law, contract or order of court;
“controlling shareholder”, in relation to a corporation, means —
(a) a person who has an interest in the voting shares of a
corporation and who exercises control over the
corporation; or
(b) a person who has an interest in shares entitling the
beneficial owners thereof the right to cast, whether by
proxy or in person, 30% or more of the total votes able
to be cast at a general meeting of the corporation, unless
he does not exercise control over the corporation;
“controlling unitholder”, in relation to a registered business trust,
means a person who has an interest or interests in units
representing 30% or more of the total voting rights of all the
unitholders of the registered business trust;
“immediate family”, in relation to an individual, means the
individual’s spouse, son, adopted son, step-son, daughter,
adopted daughter, step-daughter, father, step-father, mother,
step-mother, brother, step-brother, sister or step-sister;
“interested person”, in relation to a registered business trust,
means —
(a) the trustee-manager of the registered business trust;
(b) a related corporation of the trustee-manager of the
registered business trust;
(c) an associated company of the trustee-manager of the
registered business trust;
(d) a director, chief executive officer or controlling
shareholder of the trustee-manager of the registered
business trust;
(e) an associate of a director, chief executive officer or
controlling shareholder of the trustee-manager of the
registered business trust;
(f) a controlling unitholder of the registered business trust;
or
(g) an associate of a controlling unitholder of the registered
business trust;
“interested person transaction” means a transaction between the
trustee-manager of a registered business trust on behalf of the
registered business trust and an interested person of the
registered business trust.
Disclosure of policies and practices
87.—
(1) The trustee-manager of a registered business trust shall
attach to the profit and loss account of the registered business trust
required under section 76(1) a statement of its policies and practices in
relation to its management and governance of the registered business
trust containing such information and description as may be
prescribed by the Authority.
(2) Any trustee-manager of a registered business trust which
contravenes subsection (1) shall be guilty of an offence.
PART XI
APPEALS
Appeals to Minister
88.—
(1) Where an appeal is made to the Minister under this Act, the
Minister may confirm, vary or reverse the decision of the Authority on
appeal, or give such directions in the matter as he thinks fit, and the
decision of the Minister shall be final.
(2) Where an appeal is made to the Minister under this Act, the
Minister shall, within 28 days of his receipt of the appeal, constitute an
Appeal Advisory Committee comprising not less than 3 members of
the Appeal Advisory Panel and refer that appeal to the Appeal
Advisory Committee.
(3) The Appeal Advisory Committee shall submit to the Minister a
written report on the appeal referred to it under subsection (2) and may
make such recommendations as it thinks fit.
(4) The Minister shall consider the report submitted under
subsection (3) in making his decision under this section but he shall
not be bound by the recommendations in the report.
[SFA 2002 Ed., s. 310]
Appeal Advisory Committees
89.—
(1) For the purpose of enabling Appeal Advisory Committees
to be constituted under section 88, the Minister shall appoint a panel
(referred to in this Part as the Appeal Advisory Panel) comprising
such members from the public and private sectors as the Minister may
appoint.
(2) A member of the Appeal Advisory Panel shall be appointed for a
term of not more than 2 years and shall be eligible for reappointment.
(3) An Appeal Advisory Committee shall have the power, in the
exercise of its functions, to inquire into any matter or thing and may,
for this purpose, summon any person to give evidence on oath or
affirmation or produce any document or material necessary for the
purpose of the inquiry.
(4) Nothing in subsection (3) shall compel the production by an
advocate and solicitor of a document or material containing a
privileged communication made by or to him in that capacity or
authorise the taking of possession of any such document or material
which is in his possession.
(5) An advocate and solicitor who refuses to produce any document
or other material referred to in subsection (4) shall nevertheless be
obliged to give the name and address (if he knows them) of the person
to whom, or by or on behalf of whom, the privileged communication
was made.
(6) For the purposes of this Act, every member of an Appeal
Advisory Committee —
(a) shall be deemed to be a public servant for the purposes of the
Penal Code (Cap. 224); and
(b) in case of any suit or legal proceedings brought against him
for any act done or omitted to be done in the execution of his
duty under the provisions of this Act, shall have the like
protection and privileges as are by law given to a Judge in the
execution of his office.
(7) Every Appeal Advisory Committee shall have regard to the
interest of the public, the protection of unitholders of registered
business trusts and of persons intending to acquire units, or derivatives
of units, in registered business trusts and the safeguarding of sources
of information.
(8) Subject to the provisions of this Part, an Appeal Advisory
Committee may regulate its own procedure and shall not be bound by
the rules of evidence.
[SFA 2002 Ed., s. 311]
Disclosure of information
90.
Nothing in this Act shall require the Minister or any public
servant to disclose facts which he considers to be against the interest
of the public to disclose.
[SFA 2002 Ed., s. 312]
Regulations for purposes of this Part
91.—
(1) The Minister may make regulations for the purposes and
provisions of this Part and for the due administration thereof.
(2) Without prejudice to the generality of subsection (1), the
Minister may make regulations for or with respect to —
(a) the appointment of members to, and procedures of, the
Appeal Advisory Panel and Appeal Advisory Committees;
(b) the form and manner in which an appeal to the Minister under
this Act shall be made;
(c) the fees to be paid in respect of any appeal made to the
Minister under this Act, including the refund or remission,
whether in whole or in part, of such fees;
(d) the remuneration of the members of the Appeal Advisory
Panel and Appeal Advisory Committees; and
(e) all matters and things which by this Part are required or
permitted to be prescribed or which are necessary or
expedient to be prescribed to give effect to any provision of
this Part.
[SFA 2002 Ed., s. 313]
PART XII
MISCELLANEOUS
Electronic transmission of notices of meetings
92.—
(1) Where any notice of a meeting is required or permitted to
be given, sent or served under this Act or under the trust deed of a
registered business trust by the trustee-manager of the registered
business trust or the directors of the trustee-manager to —
(a) a unitholder of the registered business trust;
(b) an officer of the trustee-manager; or
(c) the auditor of the registered business trust,
that notice may be given, sent or served using electronic
communications to the current address of that person.
(2) For the purposes of this section, a notice in writing of a meeting
shall also be treated as given or sent to, or served on, a person
where —
(a) the trustee-manager of a registered business trust and that
person have agreed in writing that notices of meetings
required to be given to that person may instead be accessed by
him on a website;
(b) the meeting is a meeting to which that agreement applies;
(c) the notice is published on the website such that it is or can be
made legible;
(d) that person is notified, in a manner for the time being agreed
between him and the trustee-manager for the purpose, of —
(i) the publication of the notice on a website;
(ii) the address of that website; and
(iii) the place on that website where the notice may be
accessed, and how it may be accessed; and
(e) the notice continues to be published on and remains
accessible to that person from that website throughout the
period beginning with the giving of that notification and
ending with the conclusion of the meeting.
(3) For the purposes of this Act, a notice of a meeting treated in
accordance with subsection (2) as given or sent to, or served on, any
person shall be treated as so given, sent or served at the time of the
notification referred to in subsection (2)(d).
(4) A notice of a meeting given for the purposes of subsection (2)(d)
shall specify such matters or information as may be required for a
notice of that type under any other provision of this Act or the trust
deed of that registered business trust.
(5) Nothing in subsection (2) shall invalidate the proceedings of a
meeting where —
(a) any notice of a meeting that is required to be published and
remain accessible as mentioned in paragraph (e) of that
subsection is published and remains accessible for a part, but
not all, of the period mentioned in that paragraph; and
(b) the failure to publish and make accessible that notice
throughout that period is wholly attributable to
circumstances which it would not be reasonable to have
expected the trustee-manager of the registered business trust
to prevent or avoid.
(6) The trustee-manager of a registered business trust may,
notwithstanding any provision to the contrary in the trust deed of
the registered business trust, take advantage of subsection (1), (2), (3),
(4) or (5).
(7) For the purposes of this section and section 93, the current
address of a person or a company, in relation to any notice or
document, is a number or address used for electronic communication
which —
(a) has been notified by the person in writing to the trustee-
manager of a registered business trust as one at which the
notice or document may be sent to him; and
(b) the trustee-manager has no reason to believe that the notice or
document sent to the person at that address will not reach him.
[Companies 1994 Ed., s. 387A]
Electronic transmission of documents
93.—
(1) Where any accounts, balance sheet, report or other
document is required or permitted to be given, sent or served under
this Act or under the trust deed of a registered business trust by the
trustee-manager of the registered business trust or the directors of the
trustee-manager to —
(a) a unitholder of the registered business trust;
(b) an officer of the trustee-manager; or
(c) the auditor of the registered business trust,
that document may be given, sent or served using electronic
communications to the current address of that person.
(2) For the purposes of this section, any account, balance sheet,
report or other document shall also be treated as given or sent to, or
served on, a person where —
(a) the trustee-manager of a registered business trust and that
person have agreed in writing to his having access to
documents on a website (instead of their being sent to him);
(b) the document is a document to which that agreement applies;
(c) the document is published on the website such that it is or can
be made legible; and
(d) that person is notified, in a manner for the time being agreed
between him and the trustee-manager for that purpose, of —
(i) the publication of the document on that website;
(ii) the address of that website; and
(iii) the place on that website where the documents may be
accessed, and how it may be accessed.
(3) Where any provision of this Act or of the trust deed of a
registered business trust requires any document to be given or sent to,
or served on, a person not less then a specified number of days before
a meeting, that document, if treated in accordance with subsection (2)
as given or sent to, or served on, any person, shall be treated as given
or sent to, or served on, the person not less than the specified number
of days before the date of a meeting if, and only if —
(a) the document is published on and remains accessible to that
person from the website throughout a period beginning before
the specified number of days before the date of the meeting
and ending with the conclusion of the meeting; and
(b) the notification given for the purpose of subsection (2)(d)is
given not less than the specified number of days before the
date of the meeting.
(4) Nothing in subsection (3) shall invalidate the proceedings of a
meeting where —
(a) any document that is required to be published and remain
accessible as mentioned in paragraph (a) of that subsection is
published and remains accessible for a part, but not all, of the
period mentioned in that paragraph; and
(b) the failure to publish and make accessible that document
throughout that period is wholly attributable to circumstances
which it would not be reasonable to have expected the trustee-
manager of a registered business trust to prevent or avoid.
(5) The trustee-manager of a registered business trust may,
notwithstanding any provision to the contrary in the trust deed of
the registered business trust, take advantage of subsection (1), (2), (3)
or (4).
[Companies 1994 Ed., s. 387B]
Trustees Act not to apply to registered business trusts
94.
The Trustees Act (Cap. 337) shall not apply to a registered
business trust, notwithstanding that the business trust was constituted
before 12th October 2004.
Non-applicability of rules relating to perpetuities,
accumulations and inalienability of property to registered
business trusts
95.
The rules of law relating to perpetuities, accumulations and
inalienability of property shall not apply to any registered business
trust, notwithstanding that the business trust was constituted before
12th October 2004.
[Aust. Corp. 2001, s. 1346]
Opportunity to be heard
96.
Where this Act provides for a person to be given an opportunity
to be heard by the Authority, the Authority may prescribe the manner
in which the person shall be given an opportunity to be heard.
[SFA 2002 Ed., s. 316]
Appointment of assistants
97.—
(1) The Authority may appoint any person to exercise any of
its powers or perform any of its functions or duties under this Act,
either generally or in any particular case, except the power to make
subsidiary legislation.
(2) Any person appointed by the Authority under subsection (1)
shall be deemed to be a public servant for the purposes of the Penal
Code (Cap. 224).
[SFA 2002 Ed., s. 320]
Codes, guidelines, etc., issued by Authority
98.—
(1) The Authority may issue, in such manner as it considers
appropriate, such codes, guidelines and no-action letters as it
considers appropriate for providing guidance —
(a) in furtherance of its regulatory objectives;
(b) in relation to any matter relating to any of the functions of the
Authority under any of the provisions of this Act; or
(c) in relation to the operation of any of the provisions of this Act.
(2) The Authority may publish any such code, guideline or no-
action letter in such manner as it thinks fit.
(3) The Authority may revoke, vary, revise or amend the whole or
any part of any code, guideline or no-action letter issued under this
section in such manner as it thinks fit.
(4) Where amendments are made under subsection (3) —
(a) the other provisions of this section shall apply, with the
necessary modifications, to such amendments as they apply to
the code, guideline or no-action letter; and
(b) any reference in this Act or any other written law to the code,
guideline or no-action letter however expressed shall, unless
the context otherwise requires, be a reference to the code,
guideline, or no-action letter as so amended.
(5) The failure of any person to comply with any of the provisions of
a code or guideline issued under this section that applies to him shall
not of itself render that person liable to criminal proceedings but any
such failure may, in any proceedings whether civil or criminal, be
relied upon by any party to the proceedings as tending to establish or
to negate any liability which is in question in the proceedings.
(6) The issue by the Authority of a no-action letter shall not of itself
prevent the institution of any criminal proceedings against any person
for a contravention of any provision of this Act.
(7) Any code or guideline issued under this section —
(a) may be of general or specific application; and
(b) may specify that different provisions thereof apply to
different circumstances or provide for different cases or
classes of cases.
(8) It shall not be necessary to publish any code, guideline or no-
action letter issued under this section in the Gazette.
[Act 10 of 2013 wef 18/04/2013]
(9) In this section, “no-action letter” means a letter written by the
Authority to an applicant for such a letter to the effect that, if the facts
are as represented by the applicant, the Authority will not institute
proceedings against the applicant in respect of a particular state of
affairs or particular conduct.
[SFA 2002 Ed., s. 321]
Translation of instruments
99.—
(1) Where a person submits or furnishes to or lodges with the
Authority any book, application, return, report, statement or other
information or document under this Act which is not in the English
language, the person shall, at the same time or at such other time as
may be permitted by the Authority, submit or furnish to or lodge with
the Authority, as the case may be, an accurate translation thereof in the
English language.
(2) Where a person is required to make available for inspection by
the public, or any section thereof, any document, report, or other book
under this Act which is not in the English language, the person shall, at
the same time or at such other time as may be permitted by the
Authority, make available for such inspection an accurate translation
thereof in the English language.
(3) Where a person is required to maintain or keep any accounts,
minutes or other records under this Act and the accounts, minutes or
other records or any part thereof is not maintained or kept in the
English language, the person shall —
(a) cause an accurate translation of that accounts, minutes or
other records or that part of the accounts, minutes or other
records in the English language to be made from time to time
at intervals of not more than 7 days; and
(b) maintain or keep the translation with the accounts, minutes or
other records for so long as the accounts, minutes or other
records are required under this Act to be maintained or kept.
(4) Subsections (1), (2) and (3) are subject to any express provision
to the contrary in this Act or any regulations made thereunder.
(5) Any person who contravenes subsection (1), (2) or (3) shall be
guilty of an offence and shall be liable on conviction to a fine not
exceeding $25,000.
(6) Where a person is charged with an offence under subsection (5),
it shall be a defence for the person to prove that —
(a) he had taken all reasonable steps to ensure that the translation
that was submitted or furnished to or lodged with the
Authority, made available for inspection, or maintained or
kept, as the case may be, was accurate in the circumstances;
and
(b) he had believed on reasonable grounds that the translation
was accurate.
(7) In subsections (1), (2) and (3), “Act” includes any direction
made by the Authority under this Act.
[Companies 1994 Ed., s. 397; SFA 2002 Ed., s. 318A]
Right of Authority and unitholders to apply to court for order
100.
Without prejudice to any other right of action or remedy under
any written law or rule of law, the Authority or a unitholder of a
registered business trust may apply to the court for an order to compel
the trustee-manager of the registered business trust to perform its
duties as set out in the trust deed of the registered business trust, and
the court may either make the order on such terms as it considers
appropriate or dismiss the application.
[SFA 2002 Ed., s. 267A]
Power of court to make certain orders
101.—
(1) Where —
(a) on the application of the Authority, it appears to the court that
a person has committed an offence under this Act or has
contravened any condition or restriction imposed on him
under this Act or the listing rules of a securities exchange; or
(b) on the application of a securities exchange, it appears to the
court that a person has contravened the listing rules of the
securities exchange,
the court may, without prejudice to any orders it would be entitled to
make otherwise than under this section, make one or more of the
following orders:
(i) in the case of a persistent or continuing breach of this Act, any
condition or restriction imposed under this Act or the listing
rules of a securities exchange, an order directing a person to
do or refrain from doing a specified act, including, but not
limited to, directing the trustee-manager of a registered
business trust to resign as the trustee-manager;
(ii) any ancillary order deemed to be desirable in consequence of
the making of any of these orders;
(iii) an order for the reimbursement of costs of the application out
of the trust property of a registered business trust to the person
who made the application under this subsection.
(2) The court may, before making an order under subsection (1),
direct that notice of the application be given to such person as it thinks
fit or that notice of the application be published in such manner as it
thinks fit, or both.
(3) Any person who, without reasonable excuse, contravenes an
order made under subsection (1) shall be guilty of an offence and shall
be liable on conviction to a fine not exceeding $50,000 or to
imprisonment for a term not exceeding 2 years or to both.
(4) Subsection (3) shall not affect the powers of the court in relation
to the punishment for contempt of court.
(5) The court may, on the application of an affected person or of its
own motion, rescind, vary or discharge an order made by it under this
section or suspend the operation of such an order.
[SFA 2002 Ed., s. 325]
Court may compel compliance
102.—
(1) If any person in contravention of this Act refuses or fails
to permit the inspection of any register, minute book or document or to
supply a copy of any register, minute book or document, the court may
by order compel an immediate inspection of the register, minute book
or document or order the copy to be supplied.
(2) If any officer or former officer of the trustee-manager of a
registered business trust has failed or omitted to do any act, matter or
thing which under this Act he is or was required or directed to do, the
court may, on the application of the Authority, any unitholder of the
registered business trust, the trustee-manager or the liquidator of the
registered business trust, by order, require that officer or former officer
to do such act, matter or thing immediately or within such time as is
allowed by the order and, for the purpose of complying with any such
order, a former officer shall be deemed to have the same status, powers
and duties as he had at the time the act, matter or thing should have
been done.
[Companies 1994 Ed., s. 399]
Power of Minister to appoint inspector
103.—
(1) Notwithstanding anything in this Act, the Minister may
appoint any person as an inspector to investigate any matter if he is
satisfied that —
(a) a prima facie case has been established that, for the protection
of the public, the unitholders or the creditors of a registered
business trust, it is desirable that the affairs of the registered
business trust should be investigated;
(b) it is in the public interest that allegations of fraud, misfeasance
or other misconduct by persons who are or have been
concerned with the formation or management of the
registered business trust should be investigated; or
(c) for any other reason, it is in the public interest that the affairs
of the registered business trust should be investigated.
(2) An inspector appointed under subsection (1) shall have all the
powers conferred upon an inspector under Part IX of the Companies
Act (Cap. 50) and that Part shall apply, with the necessary
modifications, to such investigation.
(3) Any inspector appointed under subsection (1) shall report the
results of his investigation to the Minister and the Minister may, if he
thinks it in the public interest to do so, cause the report to be printed
and published.
[Companies 1994 Ed., s. 230; SFA 2002 Ed., s. 151]
Injunctions
104.—
(1) Where a person has engaged, is engaging or is likely to
engage in any conduct that constitutes or would constitute a
contravention of this Act or the trust deed of a registered business
trust, the court may, on the application of —
(a) the Authority; or
(b) any person whose interests have been, are or would be
affected by the conduct,
grant an injunction restraining the first-mentioned person from
engaging in the conduct and, if the court is of the opinion that it is
desirable to do so, requiring that person to do any act or thing.
(2) Where a person has refused or failed, is refusing or failing, or is
likely to refuse or fail, to do an act or thing that he is required by this
Act or trust deed of a registered business trust to do, the court may, on
the application of —
(a) the Authority; or
(b) any person whose interests have been, are or would be
affected by the refusal or failure to do that act or thing,
make an order requiring the first-mentioned person to do that act or
thing.
(3) Where an application is made to the court for an injunction under
subsection (1) or an order under subsection (2), the court may, if the
court is of the opinion that it is desirable to do so and before
considering the application, grant an interim injunction restraining a
person from engaging in conduct of the kind referred to in
subsection (1) or make an interim order requiring a person to do
any act or thing, pending the determination of the application.
(4) Where the court has power under this section to grant an
injunction or interim injunction or make an order or interim order
restraining a person from engaging in conduct of a particular kind or
requiring a person to do a particular act or thing, the court may, either
in addition to or in substitution for the injunction, order, interim
injunction or interim order, order that person to pay damages to any
other person.
(5) Where the court has granted an injunction or interim injunction
or made an order or interim order under this section, the court may, on
an application by any party referred to in subsection (1) or (2) or by
any person affected by the injunction, order, interim injunction or
interim order, rescind or vary the injunction, order, interim injunction
or interim order.
(6) An injunction, order, interim injunction or interim order granted
or made under this section may be expressed to operate for a period
specified in the injunction, order, interim injunction or interim order or
until the injunction, order, interim injunction or interim order is
rescinded.
(7) Any person who contravenes an injunction, order, interim
injunction or interim order that is granted or made by the court under
this section and that is applicable to him shall be guilty of an offence
and shall be liable on conviction to a fine not exceeding $50,000 or to
imprisonment for a term not exceeding 2 years or to both.
(8) Where an application is made to the court for the grant of an
injunction under subsection (1), the power of the court to grant the
injunction may be exercised —
(a) if the court is satisfied that the person has engaged in conduct
of the kind referred to in that subsection, whether or not it
appears to the court that the person intends to engage again, or
to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, in the event that an injunction is
not granted, it is likely that the person will engage in conduct
of the kind referred to in that subsection, whether or not the
person has previously engaged in conduct of that kind and
whether or not there is an imminent danger of substantial
damage to any person if the first-mentioned person engages in
conduct of that kind.
(9) Where an application is made to the court for the making of an
order under subsection (2), the power of the court to make the order
may be exercised —
(a) if the court is satisfied that the person has refused or failed to
do the act or thing referred to in that subsection, whether or
not it appears to the court that the person intends to refuse or
fail again, or to continue to refuse or fail, to do that act or
thing; or
(b) if it appears to the court that, in the event that an order is not
made, it is likely the person will refuse or fail to do the act or
thing referred to in that subsection, whether or not the person
has previously refused or failed to do that act or thing and
whether or not there is an imminent danger of substantial
damage to any person if the first-mentioned person refuses or
fails to do that act or thing.
(10) Where any person referred to in subsection (1) or (2) makes an
application to the court for the grant of an injunction or interim
injunction or for the making of an order or interim order under this
section, the court shall not require that person or any other person, as a
condition of granting the injunction, order, interim injunction or
interim order, to give any undertaking as to damages.
(11) Subsection (7) shall not affect the powers of the court in
relation to the punishment for contempt of court.
[SFA 2002 Ed., s. 326]
Power of court to grant relief
105.—
(1) If, in any civil proceedings for negligence, default, breach
of duty or breach of trust against a person to whom this section
applies, it appears to the court before which the proceedings are taken
that he is or may be liable in respect thereof but that he has acted
honestly and reasonably and that, having regard to all the
circumstances of the case, including those connected with his
appointment, he ought fairly to be excused for the negligence,
default or breach, the court may relieve him either wholly or partly
from his liability on such terms as the court thinks fit.
(2) For the avoidance of doubt and without prejudice to the
generality of subsection (1), “liability” includes the liability of a
person to whom this section applies to account for profits made or
received.
(3) Where any person to whom this section applies has reason to
apprehend that any claim will or might be made against him in respect
of any negligence, default, breach of duty or breach of trust, he may
apply to the court for relief, and the court shall have the same power to
relieve him under this section as it would have had if it had been a
court before which civil proceedings against him for negligence,
default, breach of duty or breach of trust had been brought.
(4) This section shall apply to the following persons:
(a) the trustee-manager of a registered business trust;
(b) officers of the trustee-manager of a registered business trust;
(c) persons employed by the trustee-manager of a registered
business trust as auditors, whether they are or are not officers
of the trustee-manager; and
(d) persons who are liquidators appointed or directed by the court
to carry out any duty under this Act in relation to a registered
business trust and all other persons so appointed or so
directed.
[Companies 1994 Ed., s. 391]
Jurisdiction of court
106.
Notwithstanding any provision to the contrary in the Criminal
Procedure Code (Cap. 68), a District Court shall have jurisdiction to
try any offence under this Act and shall have power to impose the full
penalty or punishment in respect of the offence.
[SFA 2002 Ed., s. 327]
Duty not to furnish false information to Authority
107.—
(1) Any person who furnishes the Authority with any
information under this Act shall use due care to ensure that the
information is not false or misleading in any material particular.
(2) Subsection (1) shall apply only to a requirement in relation to
which no other provision of this Act creates an offence in connection
with the furnishing of information.
(3) Any person who signs any document lodged with the Authority
shall use due care to ensure that the document is not false or
misleading in any material particular.
(4) Any person who contravenes subsection (1) or (3) shall be guilty
of an offence and shall be liable on conviction to a fine not exceeding
$50,000 or to imprisonment for a term not exceeding 2 years or to
both.
[SFA 2002 Ed., s. 329]
False and misleading statement
108.
Every person who in any return, report, certificate or other
document required by or for the purposes of this Act —
(a) wilfully makes or authorises the making of a statement false
or misleading in any material particular knowing it to be false
or misleading; or
(b) wilfully omits or authorises the accession of any matter or
thing without which the document is misleading in a material
respect,
shall be guilty of an offence and shall be liable on conviction to a fine
not exceeding $50,000 or to imprisonment for a term not exceeding 2
years or to both.
[Companies 1994 Ed., s. 401]
Offences by bodies corporate, etc.
109.—
(1) Where an offence under this Act (other than an offence
under Division 1 of Part X) committed by a body corporate is
proved —
(a) to have been committed with the consent or connivance of an
officer; or
(b) to be attributable to any neglect on his part,
the officer as well as the body corporate shall be guilty of the offence
and shall be liable to be proceeded against and punished accordingly.
(2) Where the affairs of the body corporate are managed by its
members, subsection (1) shall apply in relation to the acts and defaults
of a member in connection with his functions of management as if he
were a director of the body corporate.
(3) Where an offence under this Act committed by a partnership is
proved —
(a) to have been committed with the consent or connivance of a
partner; or
(b) to be attributable to any neglect on his part,
the partner as well as the partnership shall be guilty of the offence and
shall be liable to be proceeded against and punished accordingly.
(4) Where an offence under this Act committed by an
unincorporated association (other than a partnership) is proved —
(a) to have been committed with the consent or connivance of an
officer of an unincorporated association or a member of its
governing body; or
(b) to be attributable to any neglect on the part of such an officer
or member,
the officer or member as well as the unincorporated association shall
be guilty of the offence and shall be liable to be proceeded against and
punished accordingly.
(5) In this section —
“officer”—
(a) in relation to a body corporate, means any director,
member of the committee of management, chief
executive, manager, secretary or other similar officer
of the body corporate and includes any person
purporting to act in any such capacity; or
(b) in relation to an unincorporated association (other than a
partnership), means the president, the secretary, or any
member of the committee of the unincorporated
association, or any person holding a position
analogous to that of president, secretary or member of
a committee and includes a person purporting to act in
any such capacity;
“partner” includes a person purporting to act as a partner.
(6) Regulations may provide for the application of any provision of
this section, with such modifications as the Authority considers
appropriate, to a body corporate or unincorporated association formed
or recognised under the law of a territory outside Singapore.
[SFA 2002 Ed., s. 331]
General penalties
110.
Any person guilty of an offence under this Act for which no
penalty is expressly provided shall be liable on conviction to a fine not
exceeding $50,000.
Composition of offences
111.—
(1) The Authority may, in its discretion, compound any
offence under this Act which is prescribed as a compoundable offence
by collecting from a person reasonably suspected of having
committed the offence a sum of money not exceeding one half of
the amount of the maximum fine prescribed for that offence.
(2) The Authority may, in its discretion, compound any offence
under this Act (including an offence under a provision which has been
repealed) which —
(a) was compoundable under this section at the time the offence
was committed; but
(b) has ceased to be so compoundable,
by collecting from a person reasonably suspected of having
committed the offence a sum of money not exceeding one half of
the amount of the maximum fine prescribed for that offence at the time
it was committed.
(3) On payment of the sum of money referred to in subsection (1) or
(2), no further proceedings shall be taken against that person in respect
of the offence.
(4) The Authority may make regulations to prescribe the offences
which may be compounded.
(5) All sums collected by the Authority under subsection (1) or (2)
shall be paid into the Consolidated Fund. [Act 10 of 2013 wef 18/04/2013]
General exemption
112.—
(1) The Authority may, by regulations, exempt any person,
registered business trust, matter or transaction, or any class thereof,
from all or any of the provisions of this Act, subject to such conditions
or restrictions as may be prescribed.
(2) The Authority may, on the application of any person, exempt the
person or any registered business trust, matter or transaction from all
or any of the provisions of this Act or the requirements specified in
any written direction, by notice in writing, if the Authority considers it
appropriate to do so in the circumstances of the case.
(3) An exemption under subsection (2) —
(a) may be granted subject to such terms or conditions as the
Authority may specify by notice in writing;
(b) need not be published in the Gazette; and
(c) may be withdrawn at any time by the Authority.
(4) Any person who contravenes any term or condition prescribed
under subsection (1) or specified by the Authority under
subsection (3)(a) shall be guilty of an offence.
[SFA 2002 Ed., s. 100]
Amendment of Schedule
113.—
(1) The Authority may, at any time, by order published in the
Gazette, amend the Schedule.
(2) The Authority may, in any order made under subsection (1),
make such incidental, consequential or supplementary provision as
may be necessary or expedient.
Regulations
114.—
(1) The Authority may make regulations for carrying out the
purposes and provisions of this Act and for the due administration
thereof.
(2) Without prejudice to the generality of subsection (1), the
Authority may make regulations for or with respect to —
(a) the criteria for the registration of business trusts and the
constitution, operation and management of registered
business trusts including, but not limited to, the powers and
duties of the trustee-managers of registered business trusts
and the rights and obligations of the unitholders of registered
business trusts;
(b) the administration and regulation of registered business trusts
and, in particular, the governance practices of such registered
business trusts;
(c) the administration and regulation of trustee-managers of
registered business trusts;
(d) the particulars to be recorded in the accounts of registered
business trusts and the information on the annual accounts of
registered business trusts to be contained in the auditor’s
reports required to be lodged under this Act;
(e) the forms for the purposes of this Act;
(f) the fees to be paid in respect of any matter or thing required
for the purposes of this Act and the refund and remission,
whether in whole or in part, of such fees; and
(g) all matters and things which by this Act are required or
permitted to be prescribed or which are necessary or
expedient to be prescribed to give effect to this Act.
(3) Except as otherwise expressly provided in this Act, the
regulations —
(a) may be of general or specific application;
(b) may provide that a contravention of any specified provision
thereof shall be an offence; and
(c) may provide for penalties not exceeding a fine of $50,000 or
imprisonment for a term not exceeding 12 months or both for
each offence and, in the case of a continuing offence, a further
penalty not exceeding a fine of 10% of the maximum fine
prescribed for that offence for every day or part thereof during
which the offence continues after conviction.
[SFA 2002 Ed., s. 341]
THE SCHEDULE
Sections 2 and 113
TYPES OF TRUSTS THAT ARE NOT REGARDED AS BUSINESS TRUSTS
FOR PURPOSES OF ACT
1. A trust operated by a person otherwise than by way of business.
2. A trust under which each of the unitholders carries on a business other than
investment business and enters into the trust solely incidental to that other business.
3. A trust under which each of the unitholders is a related corporation of the
trustee.
4. Atrust made by or on behalf of a corporation solely for the benefit of persons
each of whom is either a bona fide director, a former director, a consultant, an
adviser, an employee or a former employee of that corporation or a related
corporation of that corporation, or a spouse, a widow, a widower or a child, an
adopted child or a step-child below the age of 18 of such director, former director,
employee or former employee.
5. Atrust made byor onbehalf of 2 or more corporations solely for the benefit of
persons each of whom is either a bona fide director, a former director, a consultant,
an adviser, an employee or a former employee of any of those corporations or a
related corporation of any of those corporations, or a spouse, a widow, a widower
or a child, an adopted child or a step-child below the age of 18 of such director,
former director, employee or former employee.
6. A franchise as defined in section 2(1) of the Securities and Futures Act
(Cap. 289).
7. A trust under which money is received by an advocate and solicitor from his
client, whether as a stakeholder or otherwise, acting in his professional capacity in
the ordinary course of his practice, or under which money is received by a statutory
body as a stakeholder in the carrying out of its statutory functions.
8. A trust made by any co-operative society registered under the Co-operative
Societies Act (Cap. 62) in accordance with the objects thereof solely for the benefit
of its members.
9. A trust made for the purposes of any chit fund permitted to operate under the
Chit Funds Act (Cap. 39).
10. A trust arising out of a life policy within the meaning of the Insurance Act
(Cap. 142).
LEGISLATIVE SOURCE KEY
BUSINESS TRUSTS ACT
(CHAPTER 31A)
Notes:—Unless otherwise stated, the abbreviations used in the references to other
Acts and statutory provisions are references to the following Acts and statutory
provisions. The references are provided for convenience and are not part of the Act:
Companies 1994 Ed. : Singapore, Companies Act (Chapter 50, 1994 Revised Edition)
FAA 2002 Ed. : Singapore, Financial Advisers Act (Chapter 110, 2002 Revised Edition)
SFA 2002 Ed. : Singapore, Securities and Futures Act (Chapter 289, 2002 Revised Edition)
SF (Offers of Investments) (Collective Investment Schemes) (Rg 2) : Singapore, Securities and Futures (Offers of Investments) (Collective Investment Schemes) Regulations (Chapter 289, Rg 2, 2004 Revised Edition)
Aust. Corp. 2001 : Australia, Corporations Act 2001 (Commonwealth) (Act 50 of 2001)
Delaware Stat. Trust : Delaware, Statutory Trust Act (12 Delaware Code Annotated 2005)
LEGISLATIVE HISTORY
BUSINESS TRUSTS ACT
(CHAPTER 31A)
This Legislative History is provided for the convenience of users of the Business
Trusts Act. It is not part of the Act.
1. Act 30 of 2004 — Business Trusts Act 2005
Date of First Reading : 20 July 2004 (Bill No. 28/2004 published on 21 July 2004)
Date of Second and Third Readings : 1 September 2004
Date of commencement : 12 October 2004
2. 2005 Revised Edition — Business Trusts Act
Date of operation : 31 July 2005
3. Act 42 of 2005 — Statutes (Miscellaneous Amendments) (No. 2) Act 2005
Date of First Reading : 17 October 2005 (Bill No. 30/2005 published on 18 October 2005)
Date of Second and Third Readings : 21 November 2005
Date of commencement : 1st April 2006 (Item (5) in the First Schedule — Amendment of Business Trusts Act)
4. Act 2 of 2007 — Statutes (Miscellaneous Amendments) Act 2007
Date of First Reading : 8 November 2006 (Bill No. 14/2006 published on 9 November 2007)
Date of Second and Third Readings : 22 January 2007
Date of commencement : 1 March 2007 (Item (2) of the Schedule — Amendment of Business Trusts Act)
5. Act 2 of 2009 — Securities and Futures (Amendment) Act 2009
(Related amendments made to Act by)
Date of First Reading : 15 September 2008 (Bill No. 23/2008 published on 16 September 2008)
Date of Second and Third Readings : 19 January 2009
Dates of commencement : 29th March 2010 (Section 118(g) — Amendment of Business Trusts Act)
6. Act 2 of 2009 — Securities and Futures (Amendment) Act 2009
(Related amendments made to Act by)
Date of First Reading : 15 September 2008 (Bill No. 23/2008 published on 16 September 2008)
Date of Second and Third Readings : 19 January 2009
Dates of commencement : 26 November 2010 (Section 118(f) — Amendment of Business Trusts Act)
7. Act 2 of 2009 — Securities and Futures (Amendment) Act 2009
(Consequential amendments made by)
Date of First Reading : 15 September 2008 (Bill No. 23/2008 published on 16 September 2008)
Date of Second and Third Readings : 19 January 2009
Date of commencement : 19 November 2012 (Sections 2(p), (t), (u), (v) and (w), 42, 76, 113(b) and (c), 118(a)to(e) and (h) and 119)
8. Act 10 of 2013 — Financial Institutions (Miscellaneous Amendments) Act
2013
Date of First Reading : 4 February 2013 (Bill No. 4/2013 published on 4 February2013)
Date of Second and Third Readings : 15 March 2013
Date of commencement : 18 April 2013
9. Act 5 of 2014 — Subordinate Courts (Amendment) Act 2014
(Consequential amendments made to Act by)
Date of First Reading : 11 November 2013 (Bill No. 26/2013 published on 11 November 2013)
Date of Second and Third Readings : 21 January 2014
Date of commencement : 7 March 2014
10. Act 35 of 2014 — Statutes (Miscellaneous Amendments) (No. 2) Act 2014
Date of First Reading : 8 September 2014 (Bill No. 24/2014 published on 8 September 2014)
Date of Second and Third Readings : 7 October 2014
Date of commencement : 1 July 2015
