Application by BT Funds Management Ltd

In the case of BT Funds Management Ltd, the applicant sought judicial advice under section 63 of the Trustee Act 1925 (NSW) concerning a superannuation fund. The dispute arose due to a conditional consent to a non-lapsing direction that was subsequently revoked. The applicant was concerned that it was compelled to pay a death benefit to the deceased's widow, despite the revocation of the consent and the trustee's knowledge of the separation between the deceased and his widow.

The court was required to determine whether the revocation of the conditional consent to the non-lapsing direction was valid given the trustee's knowledge of the separation. Additionally, the court needed to clarify whether the trustee was obligated to pay the death benefit to the deceased's widow as per the direction, or if the revocation rendered the direction a mere request.

The court found that the revocation of the conditional consent was valid because the trustee had actual knowledge that the deceased and his widow were permanently separated. The court held that the trustee was not compelled to pay the death benefit to the deceased's widow as provided in the direction. Instead, the direction was treated as a request, and the trustee was not obligated to follow it. The court emphasised that the trustee's decision to revoke the consent was valid and binding, and the direction could not be enforced against the trustee.

The court ordered that the revocation of the conditional consent to the non-lapsing direction was valid and that the trustee was not compelled to pay the death benefit to the deceased's widow. The direction was treated as a request, and the trustee was not obligated to follow it. The court further directed that the applicant could proceed with its application for judicial advice in light of the findings.