FEDERAL COURT OF AUSTRALIA
Australian Prudential Regulation Authority v Kelaher [2019] FCA 1521
File number: NSD 2274 of 2018 Judge: JAGOT J Date of judgment: 20 September 2019 Catchwords: SUPERANNUATION – whether two entities and their directors contravened s 52 and s 52A of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) – trustee’s duties – duties of trustee directors – alleged contraventions of statutory covenants – care, skill and diligence – best interests of the beneficiaries – conflicts of interest – whether the governing rules of the trusts exclude liability for the alleged contraventions – prudent person and prudent superannuation trustee standards of care – inadequate proof of contraventions – application dismissed Legislation: Corporations Act2001 (Cth) s 601FB(2), Pt 2D.1
Evidence Act 1995 (Cth) s 140
Explanatory Memorandum, Superannuation Legislation Amendment Trustee Obligations and Prudential Standards) Bill 2012 (Cth)
Superannuation (prudential standard) determination No. 1 of 2012 (Operational Risk Financial Requirement SPS 114)
Superannuation (prudential standard) determination No. 7 of 2012 (Prudential Standard SPS 521) cll 8, 10, 11, 16
Superannuation Industry (Supervision) Act 1993 (Cth) ss 3, 7, 10(1), 51, 51A, 52, 52(a), 52(b), 52(2)(b), 52(2)(c), 52(2)(d), 52(d)(i), 52(2)(d)(iv), 52(4), 52(8), 52(8)(a), 52A, 52A(d)(i), 52A(2)(b), 52A(2)(c), 52A(2)(d), 52A(2)(f), 52A(3), 54B(1), 54B(2), 55, 55(1), 55(3), 56, 56(1), 56(1)(a), 56(2), 56(2)(a)(1), 56(2)(a)(ii), 56(2A), 57, 57(2), 60A, 115
Superannuation Legislation Amendment (Trustee Obligations and Prudential Standards) Act 2012 (Cth)
Treasury Laws Amendment (Improving Accountability and Member Outcomes in Superannuation Measures No. 1) Act 2019 (Cth)
Cases cited: Apostolovski v Total Risk Management [2010] NSWSC 1451; (2010) 79 NSWLR 432
Australian Securities Commission v AS Nominees (1995) 62 FCR 504
Australian Securities and Investments Commission v Drake (No 2) [2016] FCA 1552; (2016) 340 ALR 75
Australian Securities and Investments Commission v Healey [2011] FCA 717; (2011) 196 FCR 291
Australian Securities and Investment Commission v Letten (No 17) [2011] FCA 1420; (2011) 286 ALR 346
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Beck & Anor [2016] NSWCA 218
Cowan v Scargill [1985] 1 Ch 270
Daniels v Anderson (1995) 37 NSWLR 438
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Elder’s Trustee and Executor Co Ltd v Higgins (1963) 113 CLR 426
Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254
HIH Insurance Limited (in prov liq) v Adler [2002] NSWSC 171; (2002) 41 ACSR 72
In re Chapman [1896] 2 Ch 763
Karger v Paul [1984] VR 161
Manglicmont v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2010] NSWSC 363; (2010) 239 FLR 159
Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2011] NSWCA 204; (2011) 282 ALR 167
Mercer Superannuation (Australia) Limited v Billinghurst [2017] FCAFC 201; (2017) 255 FCR 144
Morley v ASIC [2010] NSWCA 331; (2010) 81 ACSR 285
Nestle v National Westminster Bank [1993] 1 WLR 1260
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- Case
- [2019] FCA 1521
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court involved whether the respondents had indeed breached the SIS Act, and if so, whether the governing rules of the trusts in question excluded liability for those breaches. APRA argued that the respondents failed to exercise the requisite care, skill and diligence, and did not act in the best interests of the beneficiaries. The respondents contended that the allegations were unsubstantiated and that the governing rules of the trusts shielded them from liability. The court had to determine whether APRA had provided sufficient evidence to prove the alleged contraventions and if the governing rules effectively exempted the respondents from liability.
Justice Bromberg held that APRA had not proven any of the contraventions alleged against the respondents. The court found that the evidence presented by APRA was inadequate to establish the breaches of the SIS Act. Additionally, the court concluded that the governing rules of the trusts did not exclude liability for the alleged contraventions. As a result, APRA's application was dismissed in its entirety. The court ordered that the amended originating application be dismissed and that APRA pay the respondents' costs as agreed or taxed.
Orders
Orders of the court
1. The amended originating application be dismissed.
2. The applicant pay the respondents’ costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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