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Application by Ellasil Pty Ltd

Application by Ellasil Pty Ltd

Case [2023] VSC 69 24 February 2023

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2020 03996

IN THE MATTER of an application by ELLASIL PTY LTD (ACN 005 918 187) as trustee of the DAYCOM COMMUNICATIONS PTY LTD SUPERANNUATION FUND under s 63 of the Trustee Act 1958 and r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015
APPLICATION BY:
ELLASIL PTY LTD (ACN 005 918 187) as trustee of the DAYCOM COMMUNICATIONS PTY LTD SUPERANNUATION FUND	Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	24 February 2023
CASE MAY BE CITED AS:	Application by Ellasil Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 69

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TRUSTS — Trustees — Judicial advice — Lost trust deed — Evidence of trust — Where original trust deed unavailable — Where deeds of amendment available — Whether trustee duly appointed — Whether trustee able to rely upon deeds of amendment — Where trustee justified in proceeding upon the basis that it was duly appointed — Where sufficient proof of contents of lost deed — Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02.

EVIDENCE — Whether original trust deed existed — Whether original trust deed unavailable — Contents of original trust deed — Sufficient proof of contents of lost deed — Evidence Act 2008 (Vic) ss 48, 140.

SUPERANNUATION — Self managed superannuation fund — Binding death benefit nomination — Whether nomination binding — Nomination binding — Superannuation Industry (Supervision) Act 1993 (Cth) ss 17A, 17B — Hill v Zuda Pty Ltd (2022) 401 ALR 624 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Doherty	Ballards Solicitors
As Contradictor	Mr R Boaden

HER HONOUR:

Introduction

In its capacity as trustee of the Daycom Communications Pty Ltd Superannuation Fund (‘the fund’), the plaintiff Ellasil Pty Ltd (‘Ellasil’) has applied for guidance, directions and/or orders pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) and s 63 of the Trustee Act 1958 (Vic) (‘the Trustee Act’).

There is evidence that the fund was first established in 1979, under the name ‘Stewart Electronic Components Pty Ltd Superannuation Fund’. However, the original deed to the fund from 1979 cannot be located. Several amending instruments, the earliest of which is dated 9 October 1989, as well as a later document purporting to be a deed of trust in respect of the fund, likely prepared in 2015, are however available.

Several other documents relating to the conduct and administration of the fund are also available. This includes minutes of meetings, financial statements and a deed of appointment dated 1 July 1996 which purports to appoint Ellasil as trustee of the fund. In addition, various death benefit nominations purportedly made by the members of the fund over the course of its operation are in evidence.

Broadly, in light of the unavailability of the original deed of trust to the fund and issues surrounding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Ellasil Pty Ltd

Details

AGLC: Application by Ellasil Pty Ltd [2023] VSC 69
Case: [2023] VSC 69
Decision Date: 24 February 2023

CaseChat Overview and Summary

Ellasil Pty Ltd applied for judicial advice regarding the validity of its appointment as trustee of a self-managed superannuation fund. The trust deed was lost, but Deeds of Amendment were available. The application was heard in the Supreme Court of Victoria. The central legal issue was whether the applicant was a duly appointed trustee of the fund, and whether it could rely on the Deeds of Amendment in the absence of the original trust deed. Additionally, the court had to determine if there was sufficient proof of the contents of the lost trust deed.

The court examined the Deeds of Amendment, which contained sufficient evidence of the trust's terms and the appointment of Ellasil as trustee. It found that the original trust deed was unavailable, and the Deeds of Amendment were valid and sufficient to establish the trust's terms. The court considered the circumstances under which the trust was established and the fact that Ellasil had been acting as trustee for a significant period. The court held that Ellasil was justified in proceeding on the basis that it was duly appointed as trustee. It also found that there was sufficient proof of the contents of the lost trust deed, as per the Evidence Act 2008 (Vic) ss 48, 140.

The court concluded that Ellasil was a duly appointed trustee of the self-managed superannuation fund and could rely on the Deeds of Amendment in the absence of the original trust deed. It found that there was sufficient proof of the contents of the lost trust deed. Consequently, Ellasil was entitled to the judicial advice it sought.

The court granted the application for judicial advice, confirming the validity of Ellasil's appointment as trustee and its reliance on the Deeds of Amendment in the absence of the original trust deed.

Orders