Application by NGS Super Pty Ltd atf NGS Super

Case •

[2021] NSWSC 1694

•

22 December 2021

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Application by NGS Super Pty Ltd atf NGS Super [2021] NSWSC 1694
Hearing dates: 3 and 10 December 2021. Last submissions received on 14 December 2021.
Date of orders: 22 December 2021
Decision date: 22 December 2021
Jurisdiction:Equity
Before: Henry J
Decision:

The Plaintiff is justified in amending the Trust Deed as proposed. See [109].

Catchwords:

EQUITY – Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – where proposed amendments to trust deed of industry superannuation fund give trustee power to be paid and retain remuneration – where amendments sought to enable trustee to meet potential liabilities against it and its directors – where trustee is not-for-profit company with nominal capital – where trust deed contains existing remuneration power – whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee

Legislation Cited:

Corporations Act 2001 (Cth), s 199A

Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 11, 12

Financial Sector Reform (Hayne Royal Commission Response) Act 2020 (NSW)

SuperannuationIndustry(Supervision)Act1993 (Cth), ss 29V, 52(2), 52A, 56(2), 57(2)

Trustee Act 1925 (NSW), s 63

Cases Cited:

Application by LGSS Pty Ltd atf Local Government Super [2021] NSWSC 1613

Application by Maritime Super Pty Ltd atf Maritime Super [2021] NSWSC 1614

Application by Motor Trades Association of Australia Superannuation Fund Pty Ltd atf Spirit Super [2021] NSWSC 1672

Application by United Super Pty Ltd atf Construction and Building Unions Superannuation Fund [2021] NSWSC 1679

Australian Prudential Regulation Authority v Kelaher [2019] FCA 1521; 138 ACSR 459

Baymill Investments Pty Ltd v Drewlock Pty Ltd [2019] VSC 827

HEST Australia Ltd [2021] VSC 809

Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4

Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Limited (2006) 15 VR 87; [2006] VSC 112

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

Longboat Holdings Groupno3 v Zacole Pty Ltd [2021] VSC 280

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

Re Application of NSW Trustee & Guardian [2014] NSWSC 423

Re Application of Perpetual Trustee Co Ltd [2003] NSWSC 1185

Re Care Super Pty Ltd [2021] VSC 805

Re Care Super Pty Ltd (No 2) [2021] VSC 854

Re QSuper Board [2021] QSC 276

Re Retail Employees Superannuation Pty Ltd [2013] NSWSC 1681

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Telstra Corp Ltd v NBN Co Ltd [2014] NSWSC 940

Welker v Rinehart [2011] NSWSC 1094

Texts Cited:

Nil

Category:Principal judgment
Parties: NGS Super Pty Ltd as trustee of NGS Super (ABN 72 549 180 515) (Plaintiff)
Australian Prudential Regulation Authority (amicus curiae)
Representation:

Counsel:
D Hogan-Doran SC with D Fuller (Plaintiff)
S Cooper QC with K A Morris (APRA as amicus curiae)

Solicitors:
MinterEllison (Plaintiff)
File Number(s): 2021/324994
Publication restriction: Nil

Judgment

  1. The plaintiff, NGS Super Pty Ltd (Trustee), is the trustee of an industry superannuation fund known as NGS Super (Fund) that was established by a trust deed dated 10 June 1988 as amended from time to time (Trust Deed).

  2. By summons filed on 16 November 2021, the Trustee seeks judicial advice under s 63 of the Trustee Act 1925 (NSW) (Trustee Act) or the Court’s inherent jurisdiction that the Trustee would be justified in amending the trustee remuneration clause in the Trust Deed.

  3. Although the Trust Deed contains an express power for the Trustee to receive remuneration, the Trustee considers that the current clause is unclear and should be amended. This is in the context of a series of regulatory changes that have increased the financial risks to the Trustee and its directors, particularly changes to the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) relating to the indemnification of trustees and their directors for liabilities and penalties incurred which take effect from 1 January 2022.

  4. The Trustee’s application is similar to that in Re QSuper Board [2021] QSC 276 (QSuper), in which Kelly J gave direction in the form of advice that the trustee was justified in consenting to amendments to its deed to introduce a broad fee charging power. Similar applications have also been made by other superannuation trustees in this and other interstate courts: see, for example, Re HEST Australia Ltd [2021] VSC 809 (HESTA); Re Care Super Pty Ltd [2021] VSC 805 (Care Super); Application by LGSS Pty Ltd atf Local Government Super [2021] NSWSC 1613 (LGSS); Application by Maritime Super Pty Ltd atf Maritime Super [2021] NSWSC 1614 (Maritime Super); Application by Motor Trades Association of Australia Superannuation Fund Pty Ltd atf Spirit Super [2021] NSWSC 1672 (Motor Trades); Application by United Super Pty Ltd atf Construction and Building Unions Superannuation Fund [2021] NSWSC 1679 (United Super); Re Care Super Pty Ltd (No 2) [2021] VSC 854 (Care Super No 2).

  5. In support of its application, the Trustee relies on an amended statement of facts dated 9 December 2021, three affidavits of the Trustee’s Chief Risk and Governance Officer, Ms Natalie Previtera, affirmed 11 November 2021 (Previtera 1), 9 December 2021 (Previtera 2) and 14 December 2021 (Previtera 3), and the affidavits from Mr Maged Girgis, Solicitor, Minter Ellison, sworn 11 November 2021 and 10 December 2021.

  6. As is usual in judicial advice applications, the Trustee has provided the Court with confidential opinions from Senior and Junior Counsel and written submissions in support of its application. The written submissions also address the Trustee’s claims of confidentiality over parts of the material relied on and one of the decisions referred to above.

  7. The Australian Prudential Regulation Authority (APRA) was notified of the application and granted leave to appear at the hearing on 10 December 2021 as amicus curiae. APRA provided the Court with written submissions that were supplemented by oral submissions at the hearing on 10 December 2021.

  8. I have been greatly assisted by the submissions of the Trustee and APRA.

  9. For the reasons that follow, I have determined that the Court should provide judicial advice under s 63 of the Trustee Act to the Trustee that it would be justified in amending the Trust Deed as proposed. I have also decided that parts of the material relied on by the Trustee in support of this application should be subject to orders made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) and the Court’s inherent jurisdiction.

Background

  1. The Fund is a public offer fund that is open to members from all industries, although the majority of its members are in the education industry. It was originally established as an industry fund for teachers in non-government schools and employees in community organisations. Since its establishment, the Fund has grown, in part, from receiving transfers of superannuation interests of members of other superannuation funds, including the interests of members from a fund administered by a trustee known as CueSuper Pty Ltd. CueSuper was the applicant in proceedings in this Court for judicial advice and direction with respect to an amendment to its own trust deed: Re CueSuper Pty Ltd [2009] NSWSC 981 (CueSuper).

  2. The Fund offers superannuation benefits through three products and a number of defined benefit sub-plans. As at 30 September 2021, the Fund had over 116,000 members and $12 billion in funds under administration.

The Trustee

  1. The Trustee is a not-for-profit proprietary company that is governed by a Constitution as amended from time to time.

  2. The Board of the Trustee is made up of 12 directors. Consistent with the equal representation rules under Part 9 of the SIS Act, there are six member-representative directors and six employer-representative directors. While the Constitution allows for the appointment of two other directors, since 1 July 2021, two shareholders have agreed not to exercise their power to appoint a director.

  3. The shares of the Trustee are divided into five classes and are held by either the member- and employer-representative organisations that have appointed directors to the Board or individuals affiliated with those organisations, consistent with the restrictions contained in the Constitution: Constitution, cl 2.5.

  4. The Trustee has no dividend policy. It has never paid, and does not in the future intend to pay, any dividend to its shareholders.

  5. Under the Constitution, which was amended on 10 November 2021, the object of the Trustee is to act as trustee of the Fund or another superannuation entity and all income and property of the Trustee must be applied to carry out that object: Constitution, cl 1.7. The Constitution also prohibits distribution of any income or capital to members, including by way of payment of dividends or distribution of surplus assets in a winding up or upon the occurrence of a “Trustee Cessation Event”: Constitution, cll 15.1, 15.2 and 15.3.

  6. The Trustee’s only assets (apart from its right of indemnity from Fund assets, which is referred to below) are represented by nominal capital. The Trustee’s total equity at the end of the financial year ending 30 June 2021 was $202.

  7. The Trustee has established two reserves within the Fund: an Operational Risk Reserve to meet the Operational Risk Financial Requirement as required by APRA Prudential Standard SPS 114, and an Administration Reserve, which is referred to in the Fund’s financial statements as the Trustee Operating Reserve.

  8. As at 30 June 2021, the assets in the Operational Risk Reserve were just over $39 million. As at 30 September 2021, the total assets in the Administration Reserve were over $41 million.

  9. Currently, administration fees charged to members’ accounts are credited to the Administration Reserve. That reserve is used for ongoing management of the Fund’s operating expenditure, funding for large project expenditure as may be required on an irregular basis, costs associated with making good operational risk incidents (not otherwise covered by the Operational Risk Reserve) and wind up costs. After the costs of administering the Fund are met from the Administration Reserve, the remaining balance is used to meet liabilities or expenses for which the Trustee has a right to be indemnified.

  10. The Trustee has appointed outsourced service providers to assist in the provision of investment services, member administration and custody services. While the risk exposure in relation to the provision of some services is transferred, in part, to the external provider, NGS may still be exposed to risk, such as where the service provider acts on the direction of NGS. NGS is also responsible under its general law and statutory obligations for the selection, monitoring and supervision of the external service providers and is responsible in its role of trustee of the Fund as an RSE licensee under the SIS Act and an AFSL Holder under the Corporations Act 2001 (Cth).

Trust Deed and payment of expenses

  1. Historically, the Trust Deed provided that “Fund Expenses” were to be paid by the Trustee out of the assets of the Fund, with Fund Expenses defined to mean “the expenses and liabilities of and incidental to the establishment, operation, management, administration, investment and termination of the Fund”.

  2. In late 2002, the Trust Deed was amended to provide for the Trustee to be entitled to receive remuneration from the Fund in respect of its services as Trustee if agreed by the “Prescribed Proportion” of the “Principal Organisations” and on certain terms.

  3. On 27 June 2005, the whole of the provisions of the Trust Deed were replaced.

  4. Clause 1.3.9 of the Trust Deed currently provides for an indemnity out of the Fund to the Trustee in respect of any claim, liability, cost, loss, damage or expense in connection with the Deed or the Fund generally which is limited to the extent required to be valid under Relevant Law. The Constitution also provides an indemnity to any officer of the Trustee to the extent permitted by law and subject to the restrictions in s 199A of the Corporations Act: Constitution, cl 16.1.

  5. Clause 1.3.12 of the Trust Deed provides:

1.3.12 Fund Expenses

Subject to the Relevant Law all Fund Expenses shall be payable by the Trustee out of the assets of the Fund in accordance with the applicable provisions of this Deed.

  1. Clause 1.7.5 of the Trust Deed provides as follows:

1.7.5 Payments to Trustee

(a) The Trustee may charge and is entitled to be paid from the Fund for the administration and operation of the Fund, a Plan, a Sub-plan, Membership Category, Membership Division or Membership Section, at an amount or rate agreed to by the Participant and the Trustee without limiting the power of the Trustee to receive remuneration under this clause 1.7.5(a) the Trustee shall also be entitled to charge a fee sufficient to provide the Trustee with the minimum amount required for the purposes of obtaining any licence or approval from the Regulator associated with the carrying out of the duties imposed on the Trustee pursuant to the Relevant Law.

(b)   If an Authorised Person performs work for the Fund in a personal capacity, he or she is entitled to be paid from the Fund all usual fees for work done by that person or any firm in which that person is a partner or an employee, including anything which could be done by an unqualified person.

  1. Clause 1.1.1 of the Trust Deed includes the following definitions:

  1. Beneficiary is defined to mean “a Member and includes a person who has become entitled to a benefit as a result of the death of a Member”;

  2. Employer is defined to mean:

  1. a Principal Organisation or an Appointing Organisation;

  2. any person which has been admitted to participation in the Fund in accordance with cl 1.8; or

  3. any person who is entitled under the Relevant Law to contribute to the Fund for a person who is a Member and an employee of that person who prior to becoming an employee of that person was an Employee,

including any person who replaces or succeeds such an Employer as provided in the Deed.

  1. Member is defined to mean “a person who has been admitted to membership of the Fund for so long as he or she participates in the Fund”;

  2. Participant is defined to mean “a Beneficiary or Employer”;

  3. Principal Organisations is defined to mean:

  1. the IEU NSW/ACT, IEU VIC/TAS, IEU SA, AIS NSW, AIS SA, RCPS and SA Commission for Catholic Schools;

  2. “any other person that at the time with the written consent of all the existing Principal Organisations at that time is admitted as the [sic] Principal Organisation”; and

  3. “any further person, who, by reason of the reorganisation or amalgamation of the Principal Organisation, is the successor in whole or part to a Principal Organisation”;

but does not include “a person who by notice to the other Principal Organisation [sic] and the Trustee has ceased to be a Principal Organisation”; and

  1. Relevant Law is defined to include the SIS Act and the associated regulations (as amended, re-enacted, replaced or superseded from time to time) and any other law, rulings or guidelines applicable to the Fund governing superannuation.

  1. To date, the Trustee has not charged any remuneration in relation to the services it provides as Trustee pursuant to cl 1.7.5 of the Trust Deed. Its practice has been to invoice the Fund during the financial year for expenses incurred by the Fund, including the remuneration paid to the Trustee’s directors. The Trustee on-charges to the Fund the premiums for the trustee indemnity insurance it holds, which in the 2021 financial year totalled $158,230.

  2. Ms Previtera deposes that, although the Trust Deed currently provides the Trustee with a right to charge a fee for its services at an amount or rate agreed to by the “Participant” and the Trustee, the meaning of “Participant” in the Trust Deed is unclear such that the operation of that clause is unworkable and should be amended.

  3. The Trustee also submits that there is ambiguity in the drafting of the current remuneration power such that it may be unworkable. I agree. While cl 1.7.5 authorises the Trustee to charge a fee and receive remuneration, it requires the amount to be agreed to by the “Participant”. It is not clear whether “Participant” in cl 1.7.5 refers to a “Beneficiary” (which is relevantly defined to mean a Member), or to an “Employer” (which means one of a number of persons or organisations). There is also a question as to whether the clause would enable the Trustee to retain the fee charged for its own benefit.

Regulatory framework

  1. The Fund is a regulated superannuation fund and registerable superannuation entity for the purposes of the SIS Act.

  2. As required, the Trustee holds an Australian Financial Services Licence (AFSL) under the Corporations Act and a RSE Licence under the SIS Act. The Trustee and its directors are subject to a regulatory environment overseen by APRA and the Australian Securities and Investments Commission (ASIC).

  3. In recent years, there have been significant changes to the regulatory environment in which the Trustee and its directors have administered the Fund, which have made the discharge of their regulatory obligations and duties more onerous. The changes include an expansion of the regulatory obligations of superannuation trustees under the SIS Act and Chapter 7 of the Corporations Act and the introduction of a range of penalties to which trustees of superannuation funds and directors of trustees are exposed for non-compliance. Some of the more significant legislative changes that have been introduced and details of the range of penalties to which superannuation trustees are exposed are summarised by Kelly J in QSuper at [22]–[27].

  4. Most recently, the Financial Sector Reform (Hayne Royal Commission Response) Act 2020 (NSW) (FSR Act) has led to amendments to ss 56(2) and 57(2) of the SIS Act which take effect from 1 January 2022 and have prompted the Trustee’s application in these proceedings.

  5. Currently, ss 56(2) and 57(2) of the SIS Act render void provisions of a superannuation entity’s constituent documents that, amongst other things, would have the effect of exempting a trustee from, or indemnifying a trustee or director against, liability for breach of trust in failing to act honestly in a matter concerning the Fund or intentionally or recklessly failing to exercise the degree of care and diligence required to be exercised in relation to a matter affecting the Fund.

  6. The amendments to ss 56(2) and 57(2) of the SIS Act which take effect on 1 January 2022 (SIS Act Amendments) will impose additional restrictions on indemnification that render the Trustee and its directors personally liable for a range of obligations imposed by Commonwealth law, including obligations of strict liability.

  7. In summary, the SIS Act Amendments extend the existing prohibitions on indemnification and exemption to prevent trustees and their directors from using trust assets to pay any criminal, civil or administrative penalty incurred in relation to a contravention of any Commonwealth law, where that liability is imposed on or after 1 January 2022. This will extend to circumstances where the trustees or their directors have not engaged in criminal conduct, acted dishonestly or been guilty of gross negligence. The SIS Act Amendments and relevant parts of the Explanatory Memorandum to the Bill that introduced them are detailed in QSuper at [27]–[28] and in HESTA at [19]–[20].

  8. The SIS Act Amendments will take effect in a regulatory environment that has heightened the exposure of trustees to penalties and seen an intensification of enforcement actions by ASIC and APRA concerning the conduct of superannuation trustees and officers.

Rationale for and overview of proposed amendment

  1. The Trustee has considered the impact of the SIS Act amendments throughout 2021. With a view to mitigating the Trustee’s possible future liabilities for which it will not be indemnified from the Fund, the Trustee has revised its internal risk management systems and processes.

  2. To address the risks from the legal and regulatory changes, the Trustee has also explored various options for funding liabilities or expenses for which it will no longer be able to be indemnified out of the assets of the Fund (un-indemnifiable liabilities). The options include:

  1. reviewing its insurance arrangements and securing additional insurance cover. However, the insurance policies are subject to coverage limits, exclusions of cover and payment of a deductible for each and every claim;

  2. considering the availability of additional shareholder capital. The Trustee does not have a right or power to call on a guarantee or indemnity from its shareholders and has received confirmation from shareholders that they are unable to participate equitably in any attempt by the Trustee to raise capital to meet any un-indemnifiable liabilities; and

  3. using a special purpose services company to provide management and administration service to the Trustee for the benefit of the Fund. However, the Trustee does not consider this to be the best financial interests of members.

  1. The Trustee has determined that the above options, either individually or together, would not be sufficient to meet the risk of un-indemnifiable liabilities. It is concerned that this risk will give rise to a risk of its insolvency due to its lack of available capital.

  2. The Trustee has assessed the potential costs and other consequences to it and the Fund in the event that the Trustee becomes insolvent, and is thereby disqualified from acting as trustee, on the assumption that the Fund would be a successor fund transferred to another existing superannuation fund. That analysis (which is subject to confidentiality claims) shows that the costs to the Fund (and thus to its members) would likely be substantial.

  3. In this context, and in view of the matters referred to at [30]–[31], the Trustee identified the option of amending the remuneration clause in the Trust Deed and commence charging a fee for the provision of its services as Trustee which has, to date, been provided gratuitously.

  4. The Trustee’s proposal is to amend cl 1.7.5 of the Trust Deed to read as follows (Proposed Amendment):

1.7.5 Trustee Remuneration

(a)   The Trustee has a right to be paid and retain for itself such reasonable remuneration as it determines.

(b) The Trustee’s remuneration under clause 1.7.5(a) may be deducted in the manner determined by the Trustee from the Fund.

(c)   The Trustee may charge a different fee or amount to any member or class of members based on such criteria as it determines is fair and reasonable.

  1. The Trustee has taken advice from Senior and Junior Counsel and their solicitors, MinterEllison, on the proposal to amend the Trust Deed in the context of the concerns raised by the SIS Act Amendments. It has also engaged with APRA regarding the nature of and rationale for the Proposed Amendment.

  2. If the Proposed Amendment is made, the Trustee proposes to take remuneration for its services by deducting an amount either at once or over two years from the existing surplus that has built up in the Fund’s Administration Reserve. It also proposes to reserve an amount of capital within its own balance sheet raised through the use of the remuneration power (Capital Reserve). The initial target level of the Capital Reserve and the amount proposed to be deducted from the Administration Reserve was quantified in a report prepared by the Trustee’s previous Chief Risk Officer, a qualified actuary, which was considered by the Risk, Audit and Compliance Committee of the Trustee’s Board, and a further paper prepared and presented to that committee by Ms Previtera.

  3. The Trustee also proposes to adopt a Trustee Capital Management Policy that would govern the Trustee’s raising, use and management of the proposed Capital Reserve. That policy provides, amongst other things, for the manner in which the Capital Reserve is to be held and its permitted uses and restrictions, factors the Trustee must take into account in considering any future target level for the Capital Reserve, and that annual reviews of the target should be undertaken by reference to considerations of the risk-based capital needs of the Trustee and any prudential requirements or guidance at the time.

  4. At a meeting held on 28 September 2021, the Trustee’s Board adopted a resolution to the effect that the Board approved the Proposed Amendment subject to receiving judicial advice and no objection being received by the Trustee’s Shareholders and Appointing Organisations within the 30-day period specified in the Trust Deed.

  5. On 12 November 2021, the Trustee gave written notice to its Shareholders and Appointing Organisations of the intention to make the Proposed Amendment pursuant to cl 1.11.2(a) of the Trust Deed. The 30-day notice specified in cl 1.11.2(a) of the Trust Deed expired on 12 December 2021. Ms Previtera deposes that, as at 14 December 2021, NGS had not received any objection to the notice from any Shareholder or Appointing Organisation.

  6. In anticipation of this application, the Trustee also amended the Constitution with effect from 10 November 2021 to strengthen and add to the existing protections in relation to the Trustee (as referred to at [16] above). It also updated its Product Disclosure Statement in October 2021 to disclose its intention to introduce a trustee fee subject to receiving judicial advice and making the Proposed Amendments.

Application for judicial advice

  1. The Trustee seeks judicial advice on its proposal to amend the Trust Deed, with the intent to commence charging a fee upon the SIS Act Amendments coming into force on 1 January 2022. The Trustee seeks judicial advice so as to ensure that it is properly authorised by the Trust Deed before charging a fee and taking assets from the Fund.

  2. The Trustee seeks advice under section 63 of the Trustee Act, which relevantly provides:

63   Advice

(1)   A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

(2)   If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee's own responsibility, to have discharged the trustee's duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.

…

(4)   Unless the rules of court otherwise provide, or the Court otherwise directs, it shall not be necessary to serve notice of the application on any person, or to adduce evidence by affidavit or otherwise in support of the application.

No service of Fund members

  1. The Trustee did not serve its application for judicial advice on all of the Fund’s members and contended that this approach was consistent with s 63 of the Trustee Act.

  2. The Trustee submitted, and I accepted, that such an approach was appropriate given the large number of individual members and the time and cost associated with notifying all of them. The Trustee had engaged with member-representative organisations about the application through their appointed directors on the Trustee’s Board and in direct correspondence with those organisations prior to the hearing. It had also engaged with APRA regarding the nature of and rationale for the proposed amendment who, as noted above, appeared at the hearing on 10 December 2021 and, relevantly, did not object to the Trustee’s application.

  3. The Trustee’s approach in this regard aligns with the approach accepted by this and other courts in similar applications: see, for example, QSuper at [17] (Kelly J), Motor Trades at [54]–[55], United Super [65]–[67]; LGSS at [55]–[56]; Maritime Super at [82]–[84]; CueSuper at [10], and Re Retail Employees Superannuation Pty Ltd [2013] NSWSC 1681 at [13].

Consideration and determination of application

  1. As the Trustee submits, the Court’s power to give judicial advice is a broad discretionary power. The only jurisdictional bar to relief is the existence of a question respecting the management or administration of the trust property or the interpretation of the trust instrument: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 (Macedonian Church) at [58]–[60].

  2. I am satisfied that the advice sought by the Trustee relates to the management or administration of the Fund and that the Trustee’s application engages s 63 of the Trustee Act. The proposal to amend a trust deed to provide a power for a trustee to be paid and retain reasonable remuneration from the assets of a superannuation fund relates to the administration and management of that fund.

  3. In exercising the jurisdiction to give judicial advice, the Court should proceed on the basis that interests of the trust estate are paramount: Macedonian Church at [104]–[105], [107], [125] (Gummow ACJ, Kirby, Hayne and Heydon JJ), [196]–[197] (Kiefel J).

  4. It is not the Court’s function to take over the exercise of the Trustee’s discretion, assess the commercial wisdom of the Trustee’s decision, or tell the Trustee what to do. An order giving judicial advice is permissive and usually in the form that the trustee “is justified’ in doing something on the basis of a specified state of affairs or assumption: Re Application of NSW Trustee & Guardian [2014] NSWSC 423 at [24]–[25], cited in Baymill Investments Pty Ltd v Drewlock Pty Ltd [2019] VSC 827 at [80].

  5. The central question on this application is whether, on the material before it, the Court is satisfied that the Trustee’s proposed course of action or exercise of power to amend and make the Proposed Amendment is proper and lawful: Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Limited (2006) 15 VR 87; [2006] VSC 112 (Invensys) at [36]. The Court is concerned with whether the proposed course is within power and whether the exercise of power will not be improper in the sense that it is not exercised in good faith, with real and genuine consideration or in accordance with the purpose for which it was conferred, or it is exercised for an ulterior purpose: Care Super at [27], citing Longboat Holdings Groupno3 v Zacole Pty Ltd [2021] VSC 280 at [58]–[60].

  6. The Trustee submits that the Court should give judicial advice that the Trustee would be justified in making the Proposed Amendment as the existing remuneration clause in the Trust Deed is ambiguous and it has the power to amend in the manner contemplated. It submits that the exercise of its power to amend cl 1.7.5 is lawful and proper as it is not inconsistent with its general law duties and the statutory covenants under the SIS Act and is appropriate compared to the risk of the Trustee’s insolvency and impact on members of the Fund. In support of its application for judicial advice to amend then Trust Deed, the Trustee also submits that the exercise of its power to charge a fee pursuant to the Proposed Amendment (if made) will be subject to appropriate limitations and points to other steps taken by the Trustee in anticipation of the power being introduced, such as the adoption of the Trustee Capital Management Policy and its approach to setting the proposed target level for the Capital Reserve.

  7. The Trustee relies, in particular, on the reasoning of Kelly J in QSuper who gave direction in the form of advice that the trustee in that case was justified in consenting to an amendment to its deed to introduce a broad fee-charging power in substantially similar terms as the present Proposed Amendment

  8. APRA’s submissions focus on identifying the legal principles and discretionary considerations which, in APRA’s view, bear upon the Court’s decision about whether to grant the relief sought. They address the Trustee’s duties or obligations under the general law and the SIS Act, particularly by reference to the covenants under ss 52(2)(b)–(f) (being the covenants relating to the Trustee’s care, skill and diligence, members’ best financial interests, management of conflicts and acting fairly in dealing with beneficiaries) and the matters that the Court would take into account in assessing whether the Trustee’s proposal was consistent with those covenants.

  9. In its written submissions, APRA observed that the Trustee had not addressed certain matters in its materials, such as its assessment of the potential costs and consequences of insolvency and financial analysis for the target level of the Capital Reserve. APRA also referred to the need for the Trustee to be mindful that any charge ought not impose a cost on members to cater for seriously delinquent conduct: QSuper at [47]. These matters were addressed by the Trustee in its amended statement of facts and Previtera 2 which were served prior to the resumed hearing on 10 December 2021.

Trustee has power to amend and the Proposed Amendment is not inconsistent with express restrictions

  1. Under cl 1.11.2(a) of the Trust Deed, the Trustee has express power to amend any provision of the Trust Deed by deed or oral or written resolution as the Trustee sees fit after first giving the Principal Organisations and the Appointing Organisations 30 days’ written notice to object. As outlined at [50] above, the Trustee has given notice of the amendments in accordance with that clause and no objections have been received.

  2. Clause 1.11.2(b) provides that no amendments shall be made to the Trust Deed which adversely affect a Member’s right or claim to accrued benefits or to the amounts of accrued benefits, unless the amendments are consistent with the Relevant Law which, as outlined at [28(f)] above, includes the SIS Act.

  3. The Proposed Amendment contemplates the charging of a fee rather than a charge that would diminish or detract from any accrued benefit or right to claim the benefit so as to adversely affect it. As noted at [47], it is also proposed that the Trustee’s initial remuneration will be taken from the existing surplus in the Administration Reserve rather than by way of a charge on member accounts.

  4. As such, the Proposed Amendment does not engage the express restriction in cl 1.11.2(b) and, for the reasons that follow, I have concluded that the Trustee’s proposed exercise of the power to amend is not inconsistent with its general law and statutory obligations under the SIS Act.

Proposed Amendment is not inconsistent with SIS Act Amendments

  1. The parties’ submissions address the question of whether the SIS Act Amendments prohibit the outcome sought to be achieved by the Trustee’s Proposed Amendment. Both APRA and the Trustee submit that they do not. I agree.

  2. In Motor Trades, I considered whether the SIS Act Amendments prohibited a trustee’s proposal to amend a trust deed to introduce a new remuneration power to provide for a trustee fee to be paid out of the assets of a superannuation fund and concluded that they did not. While the proposal in that case was for a fee to be payable to the trustee up to a limit calculated as a percentage of the net assets of the fund rather than a general remuneration power as in this case, my reasoning in Motor Trades (as set out at [70]–[77] of that judgment) applies to and addresses the submissions raised by the Trustee and APRA on this issue. It is also consistent with the conclusions reached in the other cases referred to at [4] above.

Trustee is otherwise justified in making the Proposed Amendment

  1. As the power exists for the Trustee to make the Proposed Amendment and it is not inconsistent with the SIS Act Amendments, the remaining issue concerns the propriety of the proposed exercise of the Trustee’s amendment power and whether that exercise is consistent with the discharge of the Trustee’s legal duties, including under the SIS Act. Based on the material before the Court and the submissions made, and for the reasons set out below, I am satisfied that the Trustee would be reasonably justified in exercising the power of amendment to make the Proposed Amendment.

  2. It is apparent that changes to the regulatory and enforcement environment have led to a material increase in the liabilities and financial risks facing the Trustee and, as a consequence, the Fund’s members. As Kelly J noted in QSuper, prior to the SIS Act Amendments, ss 56(2) and 57(2) were understood to allow superannuation fund trustees and directors of trustees to indemnify themselves for liabilities they incurred by acting as trustee or director, even those incurred in breach of trust (except for those attributable to dishonest, intentional or reckless conduct) or a liability with respect to a statutory penalty: at [29]. When the SIS Act Amendments take effect, there will be a broad range of potential liabilities for which the Trustee and its directors will be unable to be indemnified from the assets of the Fund, including circumstances where they have not engaged in dishonest, reckless or criminal conduct.

  3. The material before the Court satisfies me that the Trustee’s proposal to exercise its power to amend is made in good faith and for a proper purpose upon a real and actual consideration of the Trustee’s position. The Trustee has identified a list of relevant circumstances which demonstrate that it has good reasons for the Proposed Amendment and justify its view that it would be in the best interests and to the benefit of the Fund’s members to make it. Those circumstances are:

  1. the high degree of responsibility, range, volume, standard, and complexity of work required by the Trustee having regard to the size and scope of the Fund and its members;

  2. the broad range of complex work undertaken by the Trustee carrying with it the risk of future liabilities being incurred as a trustee holding an AFSL and a RSE licence;

  3. the risk of future liabilities being incurred is significant given the following:

  1. from 1 January 2022, a broad range of the Trustee’s activities as a ‘superannuation trustee service’ will be subject to regulation under Chapter 7 of the Corporations Act;

  2. recent amendments to the duty to act in the best financial interests of beneficiaries under ss 52(2)(c) and 52A(2)(c) of the SIS Act may do more than simply ‘clarify’ existing law and, together with the reversal of the evidentiary burden of proof, may make it more difficult to defend claims for breach of that duty;

  3. there has been a significant increase in the potential for, and quantum of, fines and civil penalties for contraventions of Chapter 7 of the Corporations Act and the covenants in ss 52 and 52A of the SIS Act, with the prospect of further civil penalties if the Financial Accountability Regime Bill 2021 (Cth) is introduced; and

  4. APRA and ASIC have indicated an active enforcement agenda with respect to regulated superannuation funds following the Hayne Royal Commission;

  1. the Trustee’s Board anticipates there will be a wide range of potential trustee liabilities that will be unable to be indemnified from the Fund, by reasons of the SIS Act Amendments and the matters referred to at [74(c)] above;

  2. where the Trustee or a director of the Trustee is not able to be indemnified out of the assets of the Fund for a liability, the Trustee or director will need to attempt to meet that liability from their own resources (including insurance and retained earnings);

  3. the Trustee’s historical practice has been to accumulate reserves for liability risks within the Fund rather than on its own balance sheet;

  1. the Trustee’s capacity to generate its own resources to meet those liabilities is restricted because of the following:

  1. other than the current remuneration clause the subject of this judicial advice application, the Trustee does not have a remuneration power under the Trust Deed or statute;

  2. the Trustee does not have a right or power to call on a guarantee or indemnity from its shareholders, who have also confirmed they are unwilling to inject capital or otherwise provide a capital guarantee to meet any liability which cannot be met out of the assets of the Fund;

  3. a number of restrictions under the Constitution make raising any amount other than nominal share capital difficult; and

  4. the Trustee's power to borrow is restricted by s 67 of the SIS Act;

  1. with a view to mitigating its possible future liabilities for which it will not be able to be indemnified out of the assets of the Fund and to promote, facilitate and ensure trustee resilience, the Trustee Board will continue to make enhancements to the Trustee's internal risk management systems and processes;

  2. the Trustee anticipates that it could generate a capacity to manage the residual risk of these unfunded potential future liabilities by accumulating retained earnings from its activities;

  3. if the Proposed Amendment is made, the Trustee will adopt the Trustee Capital Management Policy which will govern the Trustee’s raising, use and management of the Capital Reserve;

  4. the Trustee will smooth the initial impact on current and future members by deducting any trustee remuneration from amounts in the Fund’s reserves rather than increasing the administration fee charged to member accounts;

  5. the Trustee is unable to obtain a variation to the Trust Deed by other means;

  6. the trustees of leading retail and industry superannuation funds in Australia are able to rely upon remuneration or fee-charging clauses; and

  7. the Trustee’s Board is not aware of any allegations of breach of trust or any investigation or enforcement proceeding by ASIC or APRA or any other Commonwealth regulator with respect to the Trustee or any of its directors or officers.

  1. The above matters, and those referred to at [40]–[42] and [46], satisfy me that the Trustee has endeavoured to give genuine consideration to the issues raised by the Proposed Amendment and has acted responsibly in preparing its proposal.

  2. A relatively broad and practical approach should be adopted when assessing whether the Proposed Amendments are in the best financial interests of the members of the Fund for the purposes of s 52(2)(c) of the SIS Act. Regard should be had to the interests of both present and future members and the commercial and practical realities of the superannuation industry generally: QSuper at [36], citing Australian Prudential Regulation Authority v Kelaher [2019] FCA 1521; 138 ACSR 459 (APRA v Kelaher) at [61]–[65] and Invensys at [110]–[120]. The question for the Court is not what is in the best financial interests of members, but whether the decision of the Trustee to consent to the Proposed Amendment is reasonably justifiable on that basis: APRA v Kelaher at [64]; QSuper at [36].

  3. The purpose of the Proposed Amendment, in the sense of the substantial object forming the real ground for it, is to amend an existing but ambiguous remuneration power in order to permit the Trustee to continue functioning in the face of heightened financial risks and to secure the competent administration of the Fund. Adopting Kelly J’s reasoning from QSuper at [32] and [38], with which I agree, the Trustee has obligations to keep itself in a sound financial position, which is fundamentally a prudential matter. It is consistent with the best financial interests of members for the Trustee to take steps to ensure the due and proper administration of the Fund and its trustee, one aspect of which is protection against the risk of the Trustee becoming insolvent.

  4. It is true that the Proposed Amendment provides for a broad ranging power to charge “reasonable remuneration” and does not include any metric by which to determine the quantum of the remuneration to be charged or the capital to be accumulated. Nor does it fix any time period by reference to which the remuneration is to be paid or provide for any review process in respect of the exercise of the remuneration power. However, the Trustee has put forward evidence of the maximum amount of the fee which it contemplates charging as remuneration and analysis to support the target level of the Capital Reserve. While that analysis has not been verified by an external consultant, it was undertaken by a qualified actuary employed by the Trustee, has been the subject of Board review and was subject to further analysis undertaken by the Trustee.

  5. The Trustee has also put forward details of its proposed approach to quantify its remuneration. It is to be fixed by reference to, amongst other matters, the following: the nature of the services which the Trustee provides to the fund (which continue to expand and evolve with regulatory expectations); the Trustee’s duties and legal obligations; industry benchmarking; a medium risk appetite; the assessed insolvency risk; an objective standard of reasonableness; and the impact on members assessed having regard to market analysis on the level of fees charged for trustee services, fairness between members and intergenerational equity.

  6. The Trustee has also put forward its proposed Trustee Capital Management Policy which includes a list of factors that the Trustee has taken into account in setting the proposed target level of the Capital Reserve and must take into account in preparing a plan to replenish that reserve. The Policy provides for an annual review process to ensure that the target level of the Trustee’s Capital Reserve remains appropriate.

  7. The Trustee has also committed to obtaining and following legal advice in relation to the future taking of remuneration pursuant to the Proposed Amendment and being mindful that any charge ought not to impose a cost on members to cater for seriously delinquent conduct.

  8. In other words, the material before the Court demonstrates that the Trustee’s decision-making in relation to the exercise of the remuneration power will not be unconstrained and that the purpose of the Proposed Amendment is not to enable the Trustee to substitute a high fee to accumulate a larger-than-necessary reserve in place of implementing appropriate risk controls or to exclude all residual risk to the Trustee. Rather, the evidence indicates that it can be expected that the Trustee will exercise its remuneration power for the purposes for which it was given, having regard to external legal advice and industry benchmarking, and otherwise in compliance with the Trustee’s legal obligations and duties as a trustee of a superannuation fund. That approach is consistent with a trustee’s duty of care, skill and diligence and duty to act in the best financial interest of members: QSuper at [44].

  9. Consistent with those duties, the Trustee has not pursued the Proposed Amendment without exploring reasonably available alternatives and mitigating risks of liabilities. The alternatives considered included the availability of shareholder support and additional insurance cover, and steps have been taken to invest in compliance and governance systems.

  10. I also accept that the Proposed Amendment does not give rise to an impermissible conflict contrary to s 52(2)(d) and is not inconsistent with the Trustee’s duty to act fairly in dealing with members and classes of members of the Fund in subss 52(2)(e) and (f).

  11. While equity has historically expected trustees to act gratuitously and a trustee has a duty to administer a trust with as little expense and as much profit as possible, the SIS Act recognises that a corporate trustee of a superannuation fund will be entitled to payment for its services by charging an administration fee: see SIS Act, s 29V and Care Super No 2 at [87]–[90]. Thus, the charging of a fee is not, in and of itself, preferring the trustee’s interests over that of a beneficiary.

  12. As APRA’s submissions identify, where a trustee has a personal interest in a matter and obtains a benefit of some kind as a result of the conduct in question, a trustee may comply with its obligation to avoid conflicts if the conduct in question is shown to be in the best financial interests of beneficiaries. As set out above, I consider the Trustee to be justified in concluding that the Proposed Amendment is in the best interests and to the benefit of the Fund’s members. Further, and in any event, any perceived conflict may be mitigated by an application for judicial advice: see HESTA at [6].

  13. The evidence also indicates that the Trustee has given due and proper consideration to the impact of charging a fee on members of the Fund. As outlined at [47] above, the Trustee proposes to smooth the initial impact on current and future members by deducting the proposed fee from the Fund’s Administrative Reserve surplus rather than increasing the administration fee charged to member accounts. The Proposed Amendment also permits the Trustee to charge a different fee or amount to any member or class of members based on such criteria as it determines is fair and reasonable.

  14. Finally, the confidential opinions from Counsel and other legal advice before the Court consider other aspects of the Proposed Amendment which I am satisfied support the conclusion that the Trustee is not seeking to make the Proposed Amendment in bad faith, without real or genuine consideration of the exercise of the power to amend, or otherwise for an improper purpose or in a manner that is inconsistent with the covenants under the SIS Act.

Conclusion

  1. For these reasons, I am satisfied that the Trustee is justified in making the Proposed Amendment and will grant the relief sought under s 63 of the Trustee Act.

Confidentiality

  1. The Trustee seeks confidentiality orders in relation to some of the material relied on in support of its application under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (Court Suppression Act) and the Court’s inherent jurisdiction.

  2. On 10 December 2021, the Court made interim orders under s 10(1) of the Court Suppression Act. Since then, the Trustee has revised its confidentiality claims and served further submissions on confidentiality and a revised draft order that specifies the material over which confidentiality orders are now sought. APRA’s written submissions also address the issue of confidentiality.

  3. Ms Previtera’s affidavits identify the nature of the information and bases on which confidentiality orders are sought. The information falls into two categories.

  4. The first category comprises confidential legal opinions and legal advice. This relates to two legal opinions of Senior and Junior Counsel dated 21 July 2021 and 10 December 2021 which the Trustee relies on in support of its application (Exhibits MG1 and MG2 to Mr Girgis’ affidavits), communications by and with the Trustee’s solicitors for the purpose of giving or obtaining legal advice in relation to matters the subject of this application (Exhibits NP-5 to NP-7 to Previtera 2) and parts of the statement of facts (SoF) and amended statement of facts (ASoF) that refer to aspects of the legal advice ([115] (second sentence) of the SoF and ASoF and [133(r)] (second sentence) of the ASoF).

  5. This category of information is plainly privileged and confidential to the Trustee. As the Trustee submits, it is customary for judicial advice applications to be supported by a confidential opinion of counsel. I am satisfied that the confidentiality orders are necessary to protect the Trustee’s right to maintain privilege in the legal opinions and other legal advice it has obtained in connection with this application. It is appropriate to make an order under the Court’s inherent jurisdiction without a specified duration given the privileged nature of the information and because it is not clear that it constitutes “evidence” or “information about evidence” to which s 7(b) of the Court Suppression Act would apply.

  6. The second category is information that is confidential and commercially sensitive to the Trustee. This comprises the following:

  1. Information regarding the proposed target level of the Capital Reserve and the fee under consideration by the Trustee: SoF and ASoF, [134(m)]; Previtera 2, [7]. This information is the subject of internal board consideration and is not known publicly. It may give the Trustee’s competitors an advantage to know the basis on which the Trustee is calculating its reserve levels.

  2. Internal documents relating to the Trustee’s internal decision-making processes that contain confidential analysis: Exhibits NP-1, NP-3 and NP-4 to Previtera 2. The information in these documents has not been, and is not intended to be, disclosed publicly. It may give the Trustee’s competitors an advantage to know the basis on which the Trustee has undertaken analysis in relation to its business costs and reserves.

  3. A draft policy which remains subject to internal board approval: Exhibit NP-2 to Previtera 2. The document has not been disclosed publicly (although the subjects it addresses are disclosed as parts of the ASoF at [115]) and would not be disclosed to the public in draft form. The Trustee is also concerned that disclosure may give its competitors an advantage.

  4. Information regarding the quantum of the Fund’s reserves: SoF and ASoF, [59] (second sentence) and [60] (last five words). This information has not been, and is not intended to be, disclosed publicly and the Trustee is concerned that disclosure may give the Trustee’s competitors an advantage to know the quantum and basis on which the Trustee is setting its reserve levels.

  5. Confidential communications between the Trustee and ASIC regarding regulatory interactions: SoF and ASoF, [120]–[126]. These communications have not been, and are not intended to be, disclosed publicly.

  1. The Court has power under its inherent jurisdiction or under the Court Suppression Act to prohibit disclosure or publication of information where, amongst other things, it is necessary to prevent prejudice to the proper administration of justice or where it is necessary in the public interest to make the order and that public interest outweighs the public interest in open justice: Court Suppression Act, subss 8(1)(a) and (e); John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476–7.

  2. As APRA submitted, open justice requires that proceedings be fully exposed to public and professional scrutiny and criticism to maintain public confidence in the integrity and independence of the courts. However, the principle is not absolute: Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [20].

  3. The weight to be given to the public interest in open justice may vary depending on the nature of the proceedings. It will be relevant to consider whether the proceedings are criminal or civil in nature, whether they involve questions of public or private law, and whether they involve disputes that impact on the public or only the parties. The proper conduct of trustees is a matter that warrants public scrutiny: Welker v Rinehart [2011] NSWSC 1094 at [17]; Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [52].

  4. I accept the Trustee’s submissions that confidentiality orders should be made in respect of the second category of information. Based on the evidence from Ms Previtera, I am satisfied that this information is confidential to the Trustee. I am also satisfied that that it is necessary to prevent prejudice to the proper administration of justice for the Trustee to gain some protection for that information.

  5. The proper administration of justice requires the Court to be informed on relevant aspects of a party’s dealings, including its confidential information. Absent a suppression order, a party could be exposed to the risk that its confidential information could become public and be exploited by competitors: Telstra Corp Ltd v NBN Co Ltd [2014] NSWSC 940 at [91]–[93]. The second category of information was relevant evidence at the hearing and, according to Ms Previtera’s evidence, could cause prejudice to the Trustee if it were disclosed.

  6. While an application for judicial advice is not exempt from the operation of the Court Suppression Act and such applications are heard and determined in open court, the jurisdiction under s 63 of the Trustee Act is in the nature of giving private advice that functions to provide personal protection to a trustee rather than to determine a dispute between competing litigants: Macedonian Church at [64]. By its very nature, judicial advice often requires the disclosure of privileged, confidential and commercially sensitive material to the Court: Re Application of Perpetual Trustee Co Ltd [2003] NSWSC 1185 at [14].

  7. Further, the confidential information is only a subset of the material relied on. Parts of the evidence over which no suppression order is sought are referred to in these reasons.

  8. These matters are, in my view, factors relevant to the balancing exercise and the assessment of what is required by the Court Suppression Act and supports the conclusion that the public interest in open justice should not dictate the disclosure of all the evidence in this case.

  9. The Trustee also claimed that [26]–[31] of Previtera 1 was confidential and should be subject to confidentiality orders. Those paragraphs describe the nature of the material over which the Trustee claims confidentiality and legal professional privilege and set out the grounds of those claims, the substance of which is set out at [93] and [95] above. They were also not supported by any evidence to the effect that their contents are considered to be confidential, commercially sensitive or privileged. It follows that I do not consider that information to be confidential and have not extended the confidentiality orders to paragraphs [26]–[31] of Previtera 1.

  10. Sections 11 and 12 of the Court Suppression Act require that an order specify the place where it applies and the duration of the order.

  11. The Trustee submits, and I accept, that the order to be made under the Court Suppression Act should apply anywhere in the Commonwealth as the Fund operates and has members throughout Australia, it competes in an Australia-wide industry and it would suffer prejudice from disclosure anywhere throughout Australia.

  12. As to the duration of orders sought, the Trustee submits, and I accept, that the Court should make suppression orders for 10 years. This is the period of time for which superannuation trustees must keep minutes of meetings and certain other records relating to their governance and operations under ss 103–105 of the SIS Act. According to Ms Previtera, it is also the period of time after which any competitive advantage associated with knowing the internal information is likely to be lost due to changes in the size, membership and funds of the Fund.

Costs and orders

  1. As is usual in these applications, and consistent with ss 59(4) and 93 of the Trustee Act and r 42.25 of the Uniform Civil Procedure Rules 2005 (NSW), the Trustee’s costs should be paid out of the assets of the Fund on an indemnity basis.

  2. For these reasons I make the following orders:

  1. Pursuant to section 63 of the Trustee Act 1925 (NSW) and rule 55.2 of the Uniform Civil Procedure Rules 2005 (NSW), the Plaintiff would be justified in amending clause 1.7.5 of the Trust Deed to read:

1.7.5   Trustee Remuneration

(a)   The Trustee has a right to be paid and retain for itself such reasonable remuneration as it determines.

(b) The Trustee's remuneration under clause 1.7.5(a) may be deducted in the manner determined by the Trustee from the Fund.

(c)   The Trustee may charge a different fee or amount to any member or class of members based on such criteria as it determines is fair and reasonable.

  1. Pursuant to section 8(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) or in the Court’s inherent jurisdiction, the disclosure of the following documents or parts of documents or any information contained in them (by publication or otherwise), by anyone other than the Plaintiff, be prohibited:

  1. the shaded passages of the following paragraphs of the statement of facts dated 11 November 2021 which is at pages 1 to 42 of exhibit MG1 to the affidavit of Maged Girgis sworn 11 November 2021:

  1. 59 (second sentence);

  2. 60 (last 5 words);

  3. 115 (second sentence);

  4. 120–126;

  5. 134(m);

  1. the confidential opinion of counsel dated 21 July 2021 which is at pages 43 to 52 of exhibit MG1 to the affidavit of Maged Girgis sworn 11 November 2021;

  2. the shaded passages of paragraph 7 of the affidavit of Natalie Previtera affirmed 9 December 2021;

  3. exhibits NP-1, NP-2, NP-3, NP-4, NP-5, NP-6 and NP-7 to the affidavit of Natalie Previtera affirmed 9 December 2021;

  4. the shaded passages of the following paragraphs of the amended statement of facts dated 9 December 2021 which is at pages 1 to 44 of exhibit MG2 to the affidavit of Maged Girgis sworn 10 December 2021:

  1. 59 (second sentence);

  2. 60 (last 5 words);

  3. 115 (second sentence);

  4. 120–126;

  5. 133(r) (second sentence);

  6. 134(m);

  1. the confidential opinion of counsel dated 10 December 2021 which is at pages 45 to 60 of exhibit MG2 to the affidavit of Maged Girgis sworn 10 December 2021,

  2. on the ground that the order is necessary to prevent prejudice to the proper administration of justice, or it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

  1. Order (2):

  1. operates throughout the Commonwealth; and

  2. in relation to subparagraphs a (other than (iii)), c, d (in relation to exhibits NP-1, NP-2, NP-3 and NP-4) and e (other than (iii) and (v)), operates for a period of 10 years.

  1. The documents referred to in order (2) be:

  1. placed in a sealed envelope marked ‘Confidential – Not to be opened except by order of a judge of this Court’; and

  2. not made available for inspection without an order of a judge of the Court.

  1. The costs of these proceedings be paid out of the assets of the NGS Super fund of which the Plaintiff is trustee, on an indemnity basis.

**********

Amendments

23 December 2021 - Inserted missing paragraph numbering at [84].

Decision last updated: 23 December 2021

Actions
Download as PDF Download as Word Document