Sanctions under s59 Public Trustee Act 1978 and fee estimates for managing the funds the subject of the compromise
To serve an application for a court sanction on the Queensland Public Trustee*, as required by Supreme Court Practice Direction 15 of 2018 or District Court Practice Direction 6 of 2018, please email [email protected]
If the application for sanction seeks to appoint the Queensland Public Trustee* as administrator or trustee, legal practitioners can request an Administrator or Trustee's Affidavit by emailing [email protected] allowing for sufficient time for the Queensland Public Trustee* to provide the Affidavit.
We provide estimates of fund management fees to administer damages awarded as a result of an injury. We can also sanction an award and payment of damages for personal injuries or a dependency claim regarding a claimant who is under a legal disability.
Administration fee and investment management fee estimates for sanctions
We can provide an estimate of our fund management fees to administer damages to be paid as a result of an injury or a dependency claim.
The term 'fund management fees' is used to describe the combination of:
- trustee administration fees (only applicable for customers under 18 years of age) or financial administration fees (for customers the subject of an Administration Order made in accordance with the Guardianship and Administration Act 2000 or a Protection Order under Part 6 of the Public Trustee Act 1978), and
- investment management fees.
See here for further information about how we charge fees for financial administration and trusts.
Frequently Asked Questions (FAQs) about fee estimates
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Section 17 of the Public Trustee Act 1978 allows the Queensland Public Trustee* to fix fees and charges for services provided. These fees are reviewed yearly and published by way of a Queensland Public Trustee* Fees and Charges Notice in the Government Gazette and can be viewed on our Fees and Charges page. Depending on the capacity in which we will act, the service level fee will be calculated in accordance with schedule 4, 5 or 7 of the Notice. An asset management fee in accordance with schedule 6 of the Notice will apply to the management of the funds irrespective of whether Queensland Public Trustee’s* authority is as trustee, administrator or manager.
The fees and charges set in accordance with section 17 of the Public Trustee Act 1978 form the basis for the calculations of the fee estimate request software.
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You should download the Request Fee Estimate software and enter the required information to generate a fee estimate request.
Email this fee estimate request to [email protected]. You will be emailed a letter outlining the fee estimate, generally within two business days.
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- Download the Request Fee Estimate software.
- Open the zipped folder RequestFeeEstimateApp.zip.
- Run the Windows Installer Package by double clicking the file RequestFeeEstimateApp.msi.
- A shortcut icon will be created on the desktop. Launch the application by double clicking the icon.
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You can download the Request for Fee Estimate Instructions (PDF, 21 KB)
To request a fee estimate, enter the details requested and click Finalise. A file will generate—save the file on your device and email it to [email protected].
Fields marked with a red asterisk * must be completed in order to finalise the estimate request.
How to complete the form another time
Click Save, save the file to your device, then close the application. When you wish to resume, open the application and click Load to load your earlier data. You can then finish entering the remaining data.
Navigation
Use the Previous and Next buttons to move through the application. You can click Clear to remove all data from the application and start again.
Click Exit to shut down the application. If you do not save or finalise your fee estimate request before exiting, you will lose your data and need to re-enter your data upon re-opening the application.
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Should you require any assistance in requesting a fee estimate, please email [email protected] or telephone 07 3564 2486.
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To calculate fee estimates, Queensland Public Trustee* uses a sophisticated calculator developed by Vincents Chartered Accountants, a respected Australian accounting firm. The calculator employs the principles set out in Gray v Richards [2014] HCA 40 which considered the calculation of the costs associated with fund management.
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No allowance is made for fund management on fund income.
An allowance is made for fund management on fund management.
The calculation of fund management fees is undertaken as follows:
- Calculate the life expectancy of the customer.
- Calculate the level of annual drawings that would be made by the customer from their fund in order to exhaust the fund by the end of their life expectancy, assuming there are no fund management fees payable.
- Prepare a financial projection of the fund, assuming:
- The same drawings as calculated in (2) above
- Fund management fees are payable by the customer
- The customer’s funds will be exhausted at the end of their life expectancy.
- Calculate the higher initial level of funds required to be provided to the customer in order for the assumptions in (3) above to be satisfied.
- Calculate the applicable Queensland Public Trustee* fees on the balance of the fund in each year, assuming the higher initial fund which incorporates the required amount for fund management fees (i.e. as calculated in (4) above) and
- Discount the fund management fees calculated for each year to a present value as at the date of the calculation.
The application of this methodology is circular in nature as the higher initial level of funds required to be provided to the customer in step (4) above incorporates the fees and associated outlays payable to Queensland Public Trustee*, however the amount of the investment fee payable will vary depending on the level of funds. This is an inherent complication of the 'fund management on fund management' approach required by Gray v Richards [2014] HCA 40.
Queensland Public Trustee* overcomes this difficulty using a macro-enabled calculator developed by Vincents Chartered Accountants, which calculates the higher level of initial funds required to pay the management fees whilst simultaneously varying the applicable fees (i.e. to allow for the change in investment strategy as the level of funds under management varies).
Note: The fee calculator methodology for a minor who will be capable at eighteen years of age is to maintain the capital until eighteen years of age and will not provide for annual drawings.
How a Protection Order benefits a child's damages payout
Where a Claimant under the age of 18 is to receive a damages payout in an action in the Court, the Court will generally appoint a trustee to administer the minor’s damages. This may include Queensland Public Trustee*, a private trustee company or an individual.
Under Part 6 of the Public Trustee Act 1978, the Court can appoint the Public Trustee as Manager (rather than trustee) for the minor’s damages under what is called a Protection Order. Part 6 does not give the Court the discretion to appoint a private trustee company, or an individual, as Manager under a Protection Order.
The benefits of a Protection Order
The making of a Protection Order in favour of Queensland Public Trustee*, gives us additional powers to manage the minor's damages for their overall benefit. This can be particularly important in cases where there is a considerable damages award which is intended to provide for the life of the minor and investment in superannuation is being considered.
A Protection Order allows Queensland Public Trustee* to consider the use of superannuation-based strategies, in the manner most beneficial to the minor and gives certainty regarding our ability to deal with monies invested in superannuation.
The benefit of having the Court make a Protection Order at the time of the sanction hearing means that we can, if appropriate, invest funds in superannuation within 90 days of the Court order and thereby take advantage of the taxation laws relating to personal injury awards.
These additional powers set us apart from private trustee companies and individuals.
When a Protection Order ends
A Protection Order comes to an end when the minor attains the age of 18 years.
Where there is a reasonable likelihood the minor will not have capacity to manage their finances when they turn 18, we may consider applying to the Queensland Civil and Administrative Tribunal for an Order, pursuant to ss 12 or 13 of the Guardianship and Administration Act 2000 to be appointed as financial administrator, prior to the minor reaching the age of 18 years.
Applying for a Protection Order
An application for a Protection Order is made pursuant to the Public Trustee Act 1978. For further information email [email protected]
Sanctions under s59 Public Trustee Act 1978
A sanction is the process of the Court or Queensland Public Trustee* approving the award and payment of damages for personal injuries to a claimant who is under a legal disability. A claimant will be considered to be under a legal disability if they are under the age of 18, or do not have capacity to give instructions on the proposed settlement.
To request Queensland Public Trustee's* sanction of compromises under section 59 of the Public Trustee Act 1978, email a completed sanction questionnaire to [email protected].
The current fees for a sanction by us under s 59 appear in schedule 14 of the Public Trustee (Fees and Charges Notice) (No. 1) 2021, or you can also view these fees in our fees and charges section.
Parties who make an application for a court sanction should review Supreme Court Practice Direction 15 of 2018 or District Court Practice Direction 6 of 2018 which sets out the requirements for service of court sanction documents on Queensland Public Trustee* and can be accessed here.
If the Application for sanction seeks to appoint Queensland Public Trustee* as administrator or trustee, legal practitioners can request an Administrator or Trustee's Affidavit from [email protected].
*Queensland Public Trustee is our registered business name, however the legal name of the Corporation under the Public Trustee Act 1978 is The Public Trustee of Queensland. If the Queensland Public Trustee is sought to be appointed as financial administrator, manager, personal representative, agent, attorney, nominated person, trustee, litigation guardian or in any other legal capacity, or is being named in any legal context, the relevant documents (including court documents) must describe the Corporation as The Public Trustee of Queensland and must also refer to the capacity in which The Public Trustee of Queensland is sought to be appointed or named.
Privacy Statement
Queensland Public Trustee is collecting personal information from the sanction questionnaire and the Fee Estimate Request File in order to estimate administration and investment fees and for related, internal management processes. Before you complete the sanction questionnaire or the Fee Estimate Request File, please read our privacy statement.