Asgard Capital Management Ltd v Maher

Case [2003] FCAFC 156

FEDERAL COURT OF AUSTRALIA

Asgard Capital Management Limited v Maher [2003] FCAFC 156

SUPERANNUATION – member’s benefit – payment of benefit by trustee to person other than member – whether payment by trustee in breach of Superannuation Industry (Supervision) Regulations 1994 – whether payment “in favour of” the member

WORDS AND PHRASES – “in favour of”

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss14(2), 37(1)(a)
Superannuation Industry (Supervision) Act 1993 (Cth) ss 34,
Superannuation Industry (Supervision) Regulations 1994 regs 6.17(2), 6.17A, 6.18, 6.19, 6.19A, 6.20, 6.22, 13.12, 13.13

ASGARD CAPITAL MANAGEMENT LIMITED v BARRY RICHARD MAHER
N 1232 of 2002

RYAN, FINKELSTEIN & DOWNES JJ
25 JULY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1232 of 2002

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:

ASGARD CAPITAL MANAGEMENT LIMITED
Appellant

AND:

BARRY RICHARD MAHER
Respondent

JUDGES:

RYAN, FINKELSTEIN & DOWNES JJ

DATE OF ORDER:

25 JULY 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be allowed.

2.   The orders of the trial judge made on 29 October 2002 be set aside.

3.   The decision of the Superannuation Complaints Tribunal dated 28 June 2002 be set aside. 

4.   The decision of the appellant made on 5 October 1999 and the subject of the appeal be affirmed.

5.   The respondent pay the appellant’s taxed costs of the appeal and of the hearing below.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1232 of 2002

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:

ASGARD CAPITAL MANAGEMENT LIMITED
Appellant

AND:

BARRY RICHARD MAHER
Respondent

JUDGES:

RYAN, FINKELSTEIN & DOWNES JJ

DATE:

25 JULY 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

  1. This unfortunate case arises out of the dishonesty of a financial adviser.  The adviser stole $245,050.65 which his client, the respondent, had invested in a superannuation fund.  He also stole large sums from other people.  Not surprisingly, the adviser is unable to repay any of the money he embezzled.  The question that falls for decision on this appeal is who must bear the loss resulting from the theft of the $245,050.65?  Is it to be the respondent, who can ill afford the burden, or the appellant, the trustee of the superannuation fund where the money was placed. 

  2. The facts can be shortly stated. The respondent was a beneficiary of the Asgard Independence Plan Superannuation fund which had been established to provide retirement benefits for its members. The fund is comprised of a number of separate divisions. The respondent was a beneficiary of Division 2 known as the Asgard Superannuation Account. The trust deed provides that each division “shall be constituted a trust fund to be held under and in accordance with the terms and conditions of this Deed and the Rules” [cl 2.2.1]. The Rules are contained in schedules and the rules…

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AGLC
Asgard Capital Management Ltd v Maher [2003] FCAFC 156
Case
[2003] FCAFC 156
Decision Date

CaseChat Overview and Summary

Asgard Capital Management Ltd, the appellant, was involved in a dispute with Maher, the respondent, which was heard in the Federal Court of Australia. The central issue was the validity of a decision made by the Superannuation Complaints Tribunal. Asgard Capital Management, a financial management company, had made a decision regarding a superannuation fund which was contested by Maher. The Tribunal had ruled against Asgard's decision, prompting an appeal to the Federal Court.

The primary legal issue before the court was whether the Superannuation Complaints Tribunal had correctly exercised its jurisdiction and applied the relevant statutory provisions in making its decision. The court was required to examine whether the Tribunal had made an error of law or had otherwise acted beyond its authority. The case also involved the interpretation of certain provisions of the Superannuation Industry (Supervision) Act 1993 (Cth), specifically those concerning the powers and duties of the Tribunal.

The court found that the Superannuation Complaints Tribunal had not correctly exercised its jurisdiction and had made an error of law in its interpretation of the statutory provisions. The Tribunal's decision was therefore set aside. The court held that the original decision made by Asgard Capital Management, which had been the subject of the Tribunal's review, was valid and should be affirmed. The court found that Asgard had acted within its authority and in accordance with the relevant statutory framework. The appeal was thus allowed, and the original decision was reinstated.

In light of the above, the court made several orders. The appeal was allowed, and the orders of the trial judge made on 29 October 2002 were set aside. The decision of the Superannuation Complaints Tribunal dated 28 June 2002 was also set aside. The decision of the appellant, made on 5 October 1999, was affirmed. Additionally, the respondent was ordered to pay the appellant’s taxed costs of the appeal and of the hearing below.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the trial judge made on 29 October 2002 be set aside.

3. The decision of the Superannuation Complaints Tribunal dated 28 June 2002 be set aside.

4. The decision of the appellant made on 5 October 1999 and the subject of the appeal be affirmed.

5. The respondent pay the appellant’s taxed costs of the appeal and of the hearing below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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