Cantor Management Services Pty Ltd v Booth
[2017] SASCFC 122
•22 September 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CANTOR MANAGEMENT SERVICES P/L & ORS v BOOTH
[2017] SASCFC 122
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
22 September 2017
SUPERANNUATION - PRIVATE SECTOR FUNDS - TRUSTEES - GENERALLY
SUPERANNUATION - BENEFITS - GENERALLY
The deceased was the single member of a self managed superannuation fund (SMSF). The first appellant is the corporate trustee of the SMSF and the deceased’s brother is the sole director and shareholder of the corporate trustee pursuant to an enduring power of attorney executed by the deceased during his lifetime. The corporate trustee denies that it was served with a binding nomination executed by the deceased directing the trustee to pay his member benefits to his estate upon his death. The executor of the deceased’s estate instituted proceedings seeking a declaration that the trustee of the SMSF is to pay the member’s benefits to the deceased’s estate. The Judge at first instance found in favour of the executor. The appellants were granted permission to appeal to the Full Court. The findings of the Judge at first instance should be affirmed.
Held per Kourakis CJ (Peek and Nicholson JJ agreeing), appeal dismissed:
1. The binding death benefit nomination executed by the deceased during his lifetime had been given to the corporate trustee of the SMSF in accordance with the terms of the trust deed in order for it to be effective upon the member’s death.
Corporations Act 2001 (Cth) s 109X; Superannuation Industry (Supervision) Act 1993 (Cth) s 17A, s 59, referred to.
Munro & Anor v Munro & Anor [2015] QSC 61, applied.
Ioppolo & Hesford v Conti [2013] WASC 389, discussed.
CANTOR MANAGEMENT SERVICES P/L & ORS v BOOTH
[2017] SASCFC 122Full Court: Kourakis CJ, Peek and Nicholson JJ
KOURAKIS CJ: The first appellant, Cantor Management Services Pty Ltd (CMS) is the trustee of the Cantor Management Superannuation Fund (the Superannuation Fund). Malcolm Joseph Cantor, the deceased, who died on 10 April 2013, was the only member of the Superannuation Fund. The second appellant, Christopher Arthur Cantor, is the sole shareholder and director of CMS. The deceased and Christopher Cantor were brothers.
The principal asset of the Superannuation Fund is an industrial shed located at Coolum Beach in Queensland. Cantor Contracting Pty Ltd is a company controlled by Christopher Cantor which has an under market value tenancy of part of the premises owned by the Superannuation Fund.
The respondent, Dr Susan Louise Booth, is the cousin of the deceased and the executor of his estate.
The Superannuation Fund was established by deed dated 8 October 2010 (the Fund Deed). CMS was appointed as the trustee of the Superannuation Fund because the deceased frequently resided outside of Australia.
On 11 October 2010 the deceased completed a non-binding Death Benefit Beneficiary Nomination Form (DBBNF) purportedly pursuant to the terms of the Fund Deed nominating his siblings as beneficiaries of his death benefits. On 15 September 2011 the deceased executed a Binding Death Benefit Nomination Form (BDBNF) and he again nominated his siblings as the beneficiaries of his death benefits. On 26 September 2012 the deceased completed a second BDBNF (the 2012 BDBNF) this time he nominated his ‘Legal Personal Representative – Malcolm Cantor’ as the beneficiary.
On 15 February 2013 the deceased executed his last will. It made the following provision with respect to the death benefit under his Superannuation Fund:
5.3I acknowledge that I have made a binding nomination pursuant to the provisions of the Super Fund to the effect that CMS Pty Ltd as my trustee must pay my entitlements to my executors. I direct that my executors shall hold that benefit for my wife Neema Cantor in accordance with the terms of Neema's Family Will Trust specified in Schedule 1 but subject to my wishes set out in clause 6.
Probate of the deceased’s will was granted in South Australia on 2 September 2013 and was resealed in the Supreme Court of Queensland on 26 November 2013. On 14 July 2015 Dr Booth, in her capacity as the executor of the deceased’s estate brought an action in this Court for declarations that CMS held certain land in Queensland, and the accrued revenue therefrom, on trust for the deceased’s estate and that CMS was bound by the 2012 BDBNF. In the alternative, Dr Booth sought an order that she be appointed the trustee of the Superannuation Fund.
On 7 December 2015 in the course of the case management of this matter, the parties identified certain questions for the determination of the Court. The two questions which are in issue on this appeal are the second and third. They are:
2 Was the binding death benefit nomination dated 26 September 2012 … valid and effective?
3If the binding death benefit nomination was relevantly valid and effective, who is the legal personal representative for the purpose of the binding death benefit nomination?
The Judge found that the 2012 BDBNF was effective and that Dr Booth as the executor of the will of the deceased was the legal personal representative.
On appeal the appellants contend that the 2012 BDBNF was ineffective because it had not been given to CMS as the trustee in accordance with the Fund Deed. The appellants also appeal on the grounds that the Judge’s reasons were inadequate and that her Honour misunderstood the effect of their submissions. Those complaints can be put to one side because the effectiveness of the 2012 BDBNF can be decided by this Court on the documentary evidence which is largely common ground.
For the reasons which follow I would affirm the Judge’s finding that the 2012 BDBNF was given to the CMS as the Trustee.[1]
[1] Booth v Cantor Management Services Pty Ltd & Ors (Unreported, Supreme Court of South Australia, Master of the Supreme Court, 18 March 2016) at [29] and [44].
The Fund Deed
The Fund Deed recites that the Fund was established to operate as an Australian complying regulated self managed superannuation fund and to comply with such statutory requirements as are necessary to be eligible for concessional tax treatment.
Clause 2.1 of the Fund Deed defines a Beneficiary Nomination to mean a three year binding nomination; a Non-lapsing binding nomination, a Beneficiary Statement of Wishes, or any other form of written nomination given by a Member to the Trustee stating how the Member directs or wishes the Trustee to pay all or part of a Benefit in respect of the death of the Member.
Clause 2.1 of the Fund Deed defines Legal Personal Representative to mean the executor of the will or administrator of the estate of the deceased person, the trustee of the estate of a person under a legal disability or a person who holds an enduring power of attorney granted by a person.
Clause 3.1 of the Fund Deed provides that it must be read and construed as if it provides that all provisions of the Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS Act) and the Corporations Act (2001) (Cth) (the Corporations Act) must be complied with.
Clause 50.4 of the Fund Deed provides:
50.4 Beneficiary Nomination
(a) The Trustee must allow a Member to make a Beneficiary Nomination in accordance with this Deed.
(b) A Member who wishes to make a Beneficiary Nomination may request the Trustee to provide to the Member the information that the Trustee reasonably believes that the Member reasonably needs for the purpose of understanding the Member’s rights to make a Beneficiary Nomination in accordance with this Deed, and the Trustee must comply with that request.
(c) A Member who has given a Beneficiary Nomination to the Trustee may:
(i)amend or revoke the Beneficiary Nomination by giving to the Trustee a notice of amendment or revocation of that Beneficiary Nomination; or
(ii)replace the existing Beneficiary Nomination by giving to the Trustee a new Beneficiary Nomination made after the date of the existing Beneficiary Nomination.
(d) Unless sooner revoked by the Member, a Three Year Binding Nomination given to the Trustee ceases to have effect at the end of the period of 3 years after the day it was first signed, or last confirmed or amended, by the Member.
(e) If an item of information given by a Member in a Three Year Binding Nomination is not sufficiently clear to allow the Trustee to pay the Death Benefit in accordance with the Three Year Binding Nomination, the Trustee must seek from the Member a written statement to clarify the item as soon as practicable after the Trustee receives the Three Year Binding Nomination.
(f) The Trustee is not responsible or liable to a Member or that Member’s estate or any other person for any consequence arising from the Member’s Beneficiary Nomination being invalid or ineffective due to the Beneficiary Nomination :
(i)having ceased to have effect; or
(ii)nominating a Nominated Beneficiary who at the time of the Member’s death is not the Legal Personal Representative or a Dependent of the Member or otherwise not permitted under the Act to be the recipient of the Member’s Death Benefit.
Even though clause 2.1 of the Fund Deed defines a beneficiary nomination as a document of the kind it describes which is ‘given by a Member to the Trustee’, clause 50.4 does not expressly provide that a DBBNF must be served on the trustee, let alone prescribe for any particular form of service. Nonetheless, clause 50.4 plainly presupposes, in accordance with the definition, that the beneficiary nomination will be given to the Trustee. So much is clear from subparagraph (a) which provides that the trustee of the Superannuation Fund must allow a member to make a beneficiary nomination and from subparagraph (c) which empowers a member to amend or revoke a DBBNF nomination which has been given to the Trustee. It is most improbable that the Fund Deed intended to allow a member to amend or revoke a DBBNF which had been given to the Trustee of the Superannuation Fund but not one which, although effective, had not been given to the Trustee.
Accordingly, a DBBNF under the Fund Deed must be given to the Trustee to be effective. The question on this appeal concerns the construction of that phrase and its proper application to the facts of this case.
Clause 51 of the Fund Deed provides:
51 PERSONS TO RECEIVE DEATH BENEFITS
(a) If the Trustee holds a Three Year Binding Nomination or a Non-lapsing Binding Nomination in respect of a deceased Member, the Trustee must pay the Death Benefit to the person or persons referred to as the Nominated Beneficiary in the Beneficiary Nomination if:
(i)the person, or each of the persons, were the Legal Personal Representative or a Dependant of the deceased Member at the time of the Member’s death; and
(ii)the proportion of the Death Benefit that will be paid to that person, or to each of those persons, is certain or readily ascertainable from the Beneficiary Nomination; and
(iii)the Beneficiary Nomination is in effect.
…
Clause 51 has the consequence that a DBBNF given under the Fund Deed will not be effective and binding on the Trustee unless the nominee is either the legal personal representative or a dependent of the deceased member as defined in clause 2.1 of the Fund Deed. In this case the deceased nominated his legal personal representative. Christopher Cantor was the donee of an enduring power of attorney given by the deceased and was, therefore, the legal personal representative of the deceased during his lifetime. However, it is well established that an enduring power of attorney is terminated upon the death of the donor. This position is eloquently explained in the text Powers of Attorney:[2]
[2] Dal Pont, G, Powers of Attorney, 2nd Ed, LexisNexis Butterworths, Sydney, 2015 at 292.
Death of Principal
The effect of the death of the principal on the power of attorney was stated about a century ago by the New Zealand judge in terms that ‘a power of attorney is cancelled by the death of the donor if the latter is a natural person, or by dissolution if the donor is a corporation’.[3] This is no more than an application of basic agency law, which dictates that a principal’s death brings an agency to an end.[4] As the authority of the attorney derives entirely from the principal, and has been conferred for the benefit of the principal (or at least to foster the principal’s interests or wishes), there is sense in treating the authority as expiring once the principal dies.[5]
The Superannuation Industry (Supervision) Act 1993 (Cth)
[3] Wellington Steam Ferry Company (Ltd) (in liq) v Wellington Deposit, Mortgage and Building Association (Ltd) (1915) 34 NZLR 913 at 915 per Stout CJ (SC). See also Re Williams [1917] 1 Ch 1 at 7 per Lord Cozens-Hardy MR (‘A power of attorney … becomes inoperative on the death of the person conferring it, and the recipient cannot claim to exercise the power after that person’s death’); Berger v Council of the Law Society of New South Wales [2013] NSWSC 1080, BC201312244 at [113], [114] per Beech-Jones J.
[4] MacKenzie v Carrol (1974) 53 DLR (3d) 699 at 701 per Lieff J (HC(Ont)); Long v Schull (1981) 439 A 2d 975 at 977 (Conn); Noonan v Martin (1987) 10 NSWLR 402 at 407 per Bryson J; Nominal Defendant v Kisse (2001) Qld Lawyer Rep 110; [2001] QDC 290 at [9] per Judge McGill.
[5] In Re McCarty (1920) 53 DLR 249 (App Div (SC (Ont)) Sutherland J opined (at 257) that if a power of attorney contains ‘plain words’ providing that it ‘shall not be revoked by the death of the person executing ‘it, such words ‘must be given effect to and held to be valid and effectual’; see also at 260-1 per Clute J. In suggesting that the general law rule that a power of attorney terminates upon the death of the principle can be ousted by the terms of the power itself, these remarks are incorrect. If the general law had no means of validating powers of attorney expressed to survive the principal’s mental incapacity, the reasons underscoring this are arguably the more persuasive when dealing with the principal’s death. Moreover, statue in no jurisdiction has intervened to validate the expression of such expression. This, of course, must be read subject to where a power is irrevocable, and the death of the principal precedes the satisfaction of the interest that the power was intended to secure.
To enjoy the taxation benefits of a self managed superfund (SMSF), the trust arrangements must comply with the requirements stipulated by the SIS Act.
Section 17A(2) of the SIS Act stipulates the requirements for a single member fund. A single member fund may have a body corporate as a trustee providing that the member of the fund is a director of the body corporate. A body corporate with two directors may be the trustee of a single member fund but one of the directors must be a member of the SMSF and the other director must be either the member’s relative or, if not a relative, then the other director must not employ the member.
Section 17A(3)(b)(ii) of the SIS Act provides that a single member fund remains compliant within s 17A(2) if a non-member director of the body corporate is acting pursuant to an enduring power of attorney.[6]
[6] Superannuation Industry (Supervision) Act 1993 (Cth) s 17A(3)(b)(ii). The appointment must be pursuant to an enduring power of attorney and not a general power of attorney.
Section 17A(3) of the SIS Act provides:
Certain other persons may be trustees
(3)A superannuation fund does not fail to satisfy the conditions specified in subsection (1) or (2) by reason only that:
(a) a member of the fund has died and the legal personal representative of the member is a trustee of the fund or a director of a body corporate that is the trustee of the fund, in place of the member, during the period:
(i)beginning when the member of the fund died; and
(ii)ending when death benefits commence to be payable in respect of the member of the fund; or
(b) the legal personal representative of a member of the fund is a trustee of the fund or a director of a body corporate that is the trustee of the fund, in place of the member, during any period when:
(i)the member of the fund is under a legal disability; or
(ii)the legal personal representative has an enduring power of attorney in respect of the member of the fund; or
(c) if a member of the fund is under a legal disability because of age and does not have a legal personal representative:
(i)the parent or guardian of the member is a trustee of the fund in place of the member; or
(ii)if the trustee of the fund is a body corporate--the parent or guardian of the member is a director of the body corporate in place of the member; or
(d) an appointment under section 134 of an acting trustee of the fund is in force.
Circumstances in which entity that does not satisfy basic conditions remains a self-managed superannuation fund.
In the case of Ioppolo & Hesford v Conti,[7] Master Sanderson explained the effect of s 17A(3) of the SIS Act as follows:
Section 17A(3) is conditioned by the introductory phrase “Certain other persons may be trustees”. This subsection applies to both s 17A(1) and s 17A(2). For present purposes it is s 17A(3)(a) which is important. It allows for the possibility of the “legal personal representative” of a deceased fund member being appointed as a trustee of the fund. Section 17A(3)(a)(i)-(ii) provide a temporal limitation on the period during which the legal personal representative can be a trustee of the fund. So what the subsection anticipates is this. If there is a fund which has two or up to five members and one of the members dies the executor of the estate of the deceased can be appointed as a trustee of the fund. If that is done the fund will remain a SMSF as defined in s 17A(1). Of course the executor will not be a member of the fund — the member has died. The executor is a trustee without being a member but that situation does not fall foul of s 17A(1). Once the death benefit payment commences then the executor must be removed as a trustee or the fund would not comply with s 17A(1).
[7] [2013] WASC 389 at [12].
It follows that upon the deceased’s death and the consequential termination of the enduring power of attorney granted to Christopher Cantor, the trust arrangement ceased to comply with the SIS Act. The text The Essential SMSF Guide 2016-17 states:[8]
If an enduring power of attorney is terminated for any reason then the attorney would need to step down as the SMSF trustee and the member would have to be re-appointed.
[8] Negline T, The Essential SMSF Guide 2016-17, 1st Ed, Thomson Reuters, Sydney, 2016 at [5 045].
The same position is stated by the Self Managed Superannuation Funds Ruling 2010/2 which states:[9]
Thus, if the enduring power of attorney has, for any reason, terminated, one of the conditions in the exception contained in subparagraph 17A(3)(b)(ii) is not satisfied. In such situations, the former legal personal representative must step down and the member must be re-appointed as a trustee, or a director of the corporate trustee, in order for the fund to continue to meet the definition of an SMSF in subsections 17A(1) or 17A(2).
[9] SMSFR 2010/2EC – Self Managed Superannuation Funds: the scope and operation of subparagraph 17A(3)(b)(ii) of the Superannuation Industry (Supervision) Act 1993 at [56].
In these circumstances, the legal representative of the deceased’s estate must assume the directorship of the corporate trustee for the SMSF to remain compliant pursuant to s 17A(3)(a). The legal personal representative must then comply with regulation 6.21 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (the SIS Regulations) which triggers a compulsory cashing event of a members benefit as soon as practicable after a member dies.
Section 59 of the SIS Act and regulation 6.17A of the SIS Regulations prescribe the form of a death benefit nomination and provide that the trustee must pay a benefit to the person mentioned in the nominations and the notice given to the Trustee.
In Munro & Anor v Munro & Anor,[10] Mullins J held that those regulations do not apply to self managed superannuation funds. I respectfully agree with her Honour’s conclusion. Section 59(1) of the SIS Act prohibits, subject to s 59(1A), the exercise of any discretion affecting the superannuation fund by any person other than the trustee. However s 59(1) of the SIS Act expressly excludes self managed superannuation funds from its application. It follows that the proviso in s 59(1A) of the SIS Act which allows members to bind the trustee to pay a death benefit to a nominee if the prescribed form is followed, does not apply as a general rule governing the way in which a binding nomination may be given by a member of a SMSF.[11] The trust deed under which the SMSF is constituted will govern the form in which a binding nomination may be given.
[10] [2015] QSC 61.
[11] SMSFD 2008/3 – Self Managed Superannuation Funds Determination: Self Managed Superannuation Funds: is there any restrictions in the Superannuation Industry (Supervision) legislation on a self managed superannuation fund trustee accepting from a member a binding nomination of the recipients of any benefits payable in the event of the member’s death? at [15].
Be that as it may, the appellant does not rely on any non-compliance with the SIS Regulations other than with respect to the requirement to give notice of the DBBNF to the trustee of the Superannuation Fund which is, in any event, a requirement under the Fund Deed.
The 2012 BDBNF was given to CMS
Section 109X of the Corporations Act provides:
109X Service of documents
(1)For the purposes of any law, a document may be served on a company by:
(a) leaving it at, or posting it to, the company’s registered office; or
(b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or …
(2) For the purposes of any law, a document may be served on a director or company secretary by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 5H(2), 117(2), 205B(1) or (4) or 601BC(2). However, this only applies to service on the director or company secretary:
(a) in their capacity as a director or company secretary; or
(b)for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary.
…
(6)This section does not affect:
(a) any other provision of this Act, or any provision of another law, that permits; or
(b) the power of a court to authorise;
a document to be served in a different way.
(7)This section applies to provisions of a law dealing with service whether it uses the expression “serve” or uses any other similar expression such as “give” or “send”.
Section 28A of the Acts Interpretation Act 1901 (Cth) imposes a similarly expressed facility.
I make the following observations about that section.
First, it applies ‘for the purposes of any law’. It should be accepted that ‘law’ is not limited to statute, and includes the general law. However it is not obvious to me that s 109X of the Corporations Act goes further and applies to contractual obligations merely because such obligations are founded on the general law of contract.
Secondly, s 109X(1)(a) of the Corporations Act reproduces a longstanding statutory solution to the practical problem of effecting service on corporations which is to allow service on a registered address or, as an alternative, on a director. The common law solution was to require service on a director or proper officer of an incorporated entity but that requirement reflected the common law’s incapacity to establish an administrative regime for the registration of corporations and their offices.[12]
[12] Newby v Von Oppen and the Colt’s Patent Firearms and Manufacturing Corporation (1872) LR 7 QB 293 at 296 per Blackburn J.
Thirdly, s 109X(2) of the Corporations Act recognises that a corporation is a distinct identity separate from its officers.
Finally, s 109X(7) of the Corporations Act recognises the need to extend its provisions to all occasions in which it is necessary to bring a notice to the attention of a corporation.
Clause 31 of the Fund Deed does not incorporate s 109X of the Corporations Act. Its purpose is to ensure that the provisions of the Fund Deed are construed consistently with the statutory requirements with which a superannuation fund must comply to enjoy certain statutory benefits. Section 109X of the Corporations Act does not impose any obligation on corporations; it merely facilitates service of process and the effective delivery of other notices to them.
Nonetheless the centuries old practice of service on the registered office of a corporation informs the construction and application of the phrase ‘given by a member to the trustee’ in the Fund Deed.
The purpose of communicating a DBBNF is largely practical. To give effect to a DBBNF the Trustee must know about it and, in the case of multiple nominations, must know which was current and which had been superseded.
The Fund Deed appointed a corporate trustee. It follows that in order to achieve the purpose of the Fund Deed each member of the fund, or his or her personal legal representative must be a director of CMS. In those circumstances there was little need for the Fund Deed to attach much in the way of formality in the making of a DBBNF and its provision to the Trustee.
The word given should therefore be given its ordinary meaning, which in the case of a corporate recipient, calls for a practical application of that meaning to the way in which corporations conduct their business.
The question is therefore, whether the evidence supports the Judge’s conclusion that the 2012 BDBNF was ‘given’ to CMS. I would add that there can be no objection, other than a sematic one, to the proposition that a document executed before, and then left with, a person, is ‘given’ to him or her.
It was an agreed fact that the registered office of CMS is situated at the offices of Doyle Timms Accountants Melbourne Victoria and that at all relevant times they were the accountants of both the deceased and CMS. It was also an agreed fact that the 2012 BDBNF was signed by the deceased on 26 September 2012 and thereafter retained at the offices of Doyle Timms. The evidence summarised by the Judge shows that the 2012 BDBNF was signed by the deceased before two witnesses, Rebecca Schubert and Justin Timms on 26 September 2012. In an affirmation made on 10 July 2015, Dr Booth deposed that the binding nomination was witnessed by accountants at Doyle Timms and lodged with the registered office of the corporate trustee of the fund. Other evidence established that Rebecca Schubert was an accountant with Doyle Timms. It can be inferred that Mr Timms was an accountant, and perhaps a principal, of the eponymously named firm. At the time of its execution the 2012 BDBNF was necessarily in the possession of the deceased. After signing the 2012 BDBNF it was left in the possession, management and control of Doyle Timms. Importantly Doyle Timms were at that time accountants of both the deceased and CMS and their place of business at which the 2012 BDBNF was left was also the registered office of CMS.
In his affidavit affirmed on 24 August 2015, Christopher Cantor deposed that because he ‘had no opportunity to accept’ the 2012 BDBNF before his brother’s death, it had not been given to the Trustee. On appeal the appellants do not put their case that highly. They contend that the 2012 BDBNF was not given to CMS unless and until Doyle Timms took possession of it for and on behalf of CMS.
The appellant contends that the mere fact that the 2012 BDBNF was left at the office of Doyle Timms does not establish that it was given to CMS. The appellant contends that to be ‘given’ to CMS the 2012 BDBNF had to be in some way kept with the documents which Doyle Timms held as the accountants for CMS. The evidence did not show where Doyle Timms filed the 2012 BDBNF because neither the appellants nor the respondent adduced any evidence from any principal or employee of Doyle Timms.
The appellant’s contention must be rejected. It was not necessary for Dr Booth to show how or where Doyle Timms filed the form. The Judge’s conclusion that the 2012 BDBNF was given to CMS was supported by the evidence that it was left at its registered offices which were occupied by its accountants two of whom had witnessed it.[13] The practice of serving a corporation at its registered office is now so well established, as is the practice necessitated thereby of having systems in place to bring documents left there to the attention of the relevant company officers, that a document so left will, generally, have been given to the corporation. In this case, leaving the 2012 BDBNF at the registered address with the accountants engaged by CMS puts the question beyond doubt. In a practical sense, having regard to the working practices of accountants in these circumstances, the accountants who witnessed the execution of the 2012 BDBNF took possession of, and filed, for the purposes of both CMS and the deceased. The accountants were duty bound to keep the 2012 BDBNF safe for, and to bring it to the attention of their client, CMS.
[13] Booth v Cantor Management Services Pty Ltd & Ors (Unreported, Supreme Court of South Australia, Master of the Supreme Court, 18 March 2016) at [29]-[30].
Dr Booth was not required to prove that the deceased undertook some further act to enliven the 2012 BDBNF. It can safely be inferred that he intended it to have effect from the circumstance that he executed it before, and left it with, his accountants whom he knew also acted for CMS. A requirement to direct his accountants to put it in a particular file or to go through some ritualistic process of internally transferring it from themselves as his accountants to themselves as CMS’s accountant, is not required by the word ‘give’ in the Fund Deed. The 2012 BDBNF was given to CMS.
Conclusion
I would dismiss the appeal.
PEEK J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
NICHOLSON J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
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