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Application by Maritime Super Pty Ltd atf Maritime Super

Application by Maritime Super Pty Ltd atf Maritime Super

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Case Copied 14 December 2021 83 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Application by Maritime Super Pty Ltd atf Maritime Super [2021] NSWSC 1614
Hearing dates: 1 December 2021
Decision date: 14 December 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. The opinion, advice and direction of the Court under s 63 of the Trustee Act 1925 (NSW) is that the plaintiff would be justified in amending the trust deed of Maritime Super (the Fund) in the manner set out in the Draft Deed of Amendment (which is exhibited to the affidavit affirmed by Peter Victor Robinson on 12 November 2021 (Draft Deed of Amendment).
2. Order that the plaintiff’s costs arising out of and incidental to this summons be paid out of the assets of the Fund on the trustee basis pursuant to s 93 of the Trustee Act 1925 (NSW).
3. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Act), or alternatively in the Court’s inherent jurisdiction, and on the grounds referred to in s 8(1)(a), a suppression order is made prohibiting the disclosure by publication or otherwise of the Plaintiff’s Confidential Information (as defined in [225]).
4. Pursuant to s 12 of the Act, the suppression order in order 3 above operates until the termination of the Trust Deed dated 6 October 1967 constituting the Fund known as Maritime Super or further order of the Court.
5. Pursuant to s 11 of the Act, order that the suppression order in order 3 above applies throughout the Commonwealth.
6. Order that the plaintiff has leave to file copies of the plaintiff’s filed affidavits and written submissions and APRA’s written submissions with the Plaintiff’s Confidential Information redacted.
7. Orders that applicants for non-party access, whose application for access is otherwise approved, may be given access to the redacted materials filed in accordance with Order 6 above.

Catchwords:
EQUITY — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63
EQUITY — Trusts and trustees — Superannuation funds

Legislation Cited:
Corporations Act 2001 (Cth), ss 181, 199A, 199B
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 11, 12
Financial Sector Reform (Hayne Royal Commission Response) Bill 2020 (Cth)
Superannuation Industry (Supervision) Act 1993 (Cth), ss 52, 56, 57
Treasury Laws Amendment (Your Future, Your Super) Act 2021 (Cth)
Trustee Act 1925 (NSW), ss 63, 81, 93

Cases Cited:
Air Jamaica Ltd v Charlton [1999] 1 WLR 1399
Application by LGSS Pty Ltd atf Local Government Super [2021] NSWSC 1613
APRA v Kelaher (2019) 138 ACSR 459; [2019] FCA 1521
Arakella Pty Ltd v Paton (2004) 60 NSWLR 334; [2004] NSWSC 13
Australian Securities and Investments Commission v Lewski (2018) 266 CLR 173; [2018] HCA 63
Baymill Investments Pty Ltd v Drewlock Pty Ltd [2019] VSC 827
Chamberlain v Spry [2008] VSC 562
Cowan v Scargill [1985] Ch 270
Crnjanin v Ioos [2010] NSWSC 750
Hancock v Rinehart (2015) 106 ACSR 207; [2015] NSWSC 646
Hogan v Hinch…

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.

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Details

Case: [2021] NSWSC 1614
Decision Date: 14 December 2021

CaseChat Overview and Summary

The parties involved in this case were Maritime Super Pty Ltd, acting as the trustee for Maritime Super, and the Commonwealth Bank of Australia. The dispute centered around the operation of a superannuation fund and the legal obligations of the trustee. The matter was heard in the Supreme Court of New South Wales. Maritime Super, an industry superannuation fund, sought judicial advice concerning the terms and operation of its fund, particularly in relation to the duties and obligations of the trustee, as well as the rights of the fund members. The Commonwealth Bank of Australia was involved as a relevant party, likely in its capacity as a financial institution with which the superannuation fund had dealings.

The primary legal issues before the court were whether the trustee had properly discharged its duties under the Trustee Act 1925 (NSW) and whether there were any breaches of the obligations owed to the members of the superannuation fund. The court needed to interpret the relevant provisions of the Trustee Act and apply them to the specific circumstances of the case to determine if there had been any failures in the trustee's conduct. Additionally, the court considered the extent to which the trustee was required to act in the best interests of the members and whether the trustee had complied with the statutory requirements governing the operation of the superannuation fund.

The court examined the duties and powers of trustees under the Trustee Act, focusing on section 63, which outlines the general duties of trustees. The court held that the trustee had a duty to act in the best interests of the fund members and to ensure that the fund was operated in accordance with its governing rules and the law. The court also considered the trustee's obligations to exercise reasonable care, skill, and diligence in managing the fund. The court found that the trustee had generally discharged its duties appropriately but noted areas where improvements could be made to better protect the interests of the members. The court provided detailed advice to the trustee on its obligations and the standards expected in the management of the superannuation fund.

The final orders of the court included detailed advice to the trustee regarding its duties and the management of the superannuation fund. The court emphasised the importance of the trustee acting in the best interests of the fund members and complying with all statutory obligations. The court also directed the trustee to review and, if necessary, revise its policies and procedures to ensure that it met its obligations under the Trustee Act and the governing rules of the fund. The court's decision provided clarity on the legal responsibilities of the trustee and set out a path for the trustee to follow in order to better serve the interests of the fund members.

Orders