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Application by NGS Super Pty Ltd atf NGS Super

Application by NGS Super Pty Ltd atf NGS Super

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Case Copied 22 December 2021 43 min read

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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:

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 1694
Decision Date: 22 December 2021

CaseChat Overview and Summary

NGS Super Pty Ltd, acting on behalf of the NGS Superannuation Fund, sought judicial advice under section 63 of the Trustee Act 1925 (NSW) regarding proposed amendments to the trust deed of an industry superannuation fund. The amendments sought to give the trustee the power to be paid and retain remuneration. The purpose of these amendments was to enable the trustee to meet potential liabilities against it and its directors. The trustee in question is a not-for-profit company with nominal capital. The trust deed already contained a power to pay and retain remuneration for the trustee. The issue was whether these proposed amendments were consistent with recent amendments to sections 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and the trustee's duties.

The court considered the interplay between the Trustee Act and the Superannuation Industry (Supervision) Act. It examined whether the proposed amendments to the trust deed would allow the trustee to be paid and retain remuneration in a manner consistent with the legislative framework. The court also assessed whether the amendments would enable the trustee to meet potential liabilities against it and its directors, given the trustee's status as a not-for-profit entity. The court found that the proposed amendments were consistent with the legislative requirements and the trustee's duties, provided that the remuneration was reasonable and necessary to meet the trustee's potential liabilities.

The court concluded that the proposed amendments to the trust deed were consistent with the relevant statutory provisions and the trustee's duties. The court granted the application for judicial advice, allowing the trustee to proceed with the proposed amendments to the trust deed. The court emphasised that the trustee must ensure that any remuneration paid is reasonable and necessary, in line with the statutory and fiduciary obligations. This decision provides clarity for trustees of industry superannuation funds seeking to amend their trust deeds to address potential liabilities.

Orders