Cantor Management Services P/L v Booth

[2017] SASCFC 20

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

CANTOR MANAGEMENT SERVICES P/L & ORS v BOOTH

[2017] SASCFC 20

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)

17 March 2017

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES

SUPERANNUATION - BENEFITS - GENERALLY

SUPERANNUATION - PRIVATE SECTOR FUNDS - TRUSTEES - GENERALLY

Application for permission to appeal in private.

The respondent, executor of the deceased's will, sought to have preliminary questions concerning the validity and effect of a Binding Death Benefit Nomination determined.  Judge Bochner found it to be valid and effective.

The applicants seek to argue that the decision was grounded on incorrect principle, namely:

1.  that as long as the Binding Death Benefit Nomination was left at the trustee company's registered office, it is taken to have been given to the trustee;  and

2.  that the validity of the Binding Death Benefit Nomination was not affected by the invalidity of a prior Binding Death Benefit Nomination it was expressed to update.

Held per curiam:  Permission to appeal granted.

CANTOR MANAGEMENT SERVICES P/L & ORS v BOOTH
[2017] SASCFC 20

Full Court:      Kourakis CJ, Stanley and Bampton JJ

1. THE COURT:           This is an application for Permission to Appeal to the Full Court from a judgment of Judge Bochner who answered certain questions posed by the parties in the context of a dispute between the executor of a deceased estate and the trustee of a self‑managed superannuation scheme.  The deceased was the sole member of the scheme. The questions posed concern the validity and effect of a binding death benefit nomination (BDBN) in relation to the superannuation fund. 

2. The Court addressed three questions.  In effect, it is only the answer to the second question which is the subject of the Notice of Appeal.  That question is: Was the binding death benefit nomination dated 26 September 2012 (the 2012 nomination) valid and effective?

3. Judge Bochner answered the question, “Yes”.

4. No outline of argument on the application for permission has been filed.  Nonetheless, the basis upon which the applicants seek to propound the appeal is apparent from the terms of the Notice of Appeal. 

5. The applicants submit that the answer to the question given by Judge Bochner determines a substantive right of the appellant trustee, being the right to administer the trust in accordance with the terms of the trust deed and its obligations as trustee. 

6. The applicants want to argue that Judge Bochner erred in finding that the BDBN was valid and effective because:

   1.It was not given to the trustee as required by s 59 of the Superannuation Industry (Supervision) Act 1993 and regulation 6.17A of the Superannuation Industry (Supervision) Regulations 1994, as the BDBN was not personally served on Mr Christopher Cantor, the sole director of the trustee company, but was left at the registered office of the trustee company; and

   2.The validity of the BDBN was vitiated by the invalidity of previous BDBNs completed by the member, Mr Malcolm Cantor (deceased).

7. There is also a complaint about findings contrary to the evidence and the inadequacy of reasons.

8. In our view, the grounds sought to be agitated, at least insofar as they concern the validity of the BDBN, are arguable.  The issue is not one of mere practice or procedure.  The issue is a substantive one.

9. In the circumstances, we consider that permission to appeal should be granted.