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Cantor Management Services Pty Ltd v Booth

Cantor Management Services Pty Ltd v Booth

Case [2017] SASCFC 122 22 September 2017

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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 122
Full 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…

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.

Continue reading Cantor Management Services Pty Ltd v Booth

Details

AGLC: Cantor Management Services P/L v Booth [2017] SASCFC 122
Case: [2017] SASCFC 122
Decision Date: 22 September 2017

CaseChat Overview and Summary

Cantor Management Services Pty Ltd (CMS) appealed a decision concerning the validity of a 2012 Binding Death Benefit Nomination (BDBN) made by Dr Booth. The dispute centred on whether Dr Booth had effectively "given" the BDBN to CMS, as required by the relevant Fund Deed, to ensure it had legal effect. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Peek J, and Nicholson J.

The primary legal issue before the Full Court was whether the BDBN executed by Dr Booth in 2012 was validly "given" to CMS in accordance with the terms of the Fund Deed. This required the court to determine the meaning of the word "give" in the context of the Deed and whether Dr Booth's actions satisfied this requirement, even if he did not undertake a further explicit act to formally deliver the document to CMS after its execution.

The Court reasoned that Dr Booth did not need to prove a specific, further act to enliven the BDBN. Instead, it was sufficient to infer his intention for the BDBN to have effect from the circumstances of its execution. By executing the BDBN and leaving it with his accountants, who he knew also acted for CMS, the Court inferred that he intended it to be given to CMS. The Court held that the word "give" in the Fund Deed did not necessitate a ritualistic process or a specific direction to transfer the document internally between the accountants' roles. The BDBN was therefore considered to have been validly given to CMS.

The appeal was dismissed, with all members of the Court agreeing with the reasons provided by the Chief Justice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Cantor Management Services P/L v Booth [2017] SASCFC 122

Most Recent Citation

Re Marsella; Marsella v Wareham (No 2) [2019] VSC 65

Cases citing this decision · 14 of 14 shown

Williams v Williams
[2023] QSC 90 Para 17

…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.” [1][2017] SASCFC 122.…
Application by Ellasil Pty Ltd
[2023] VSC 69 Para 1

…SIS Act , s 3(2). See also Hill v Zuda Pty Ltd (2022) 401 ALR 624, 626 [5] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ); Cantor Management Services Pty Ltd v Booth (2017) 106 ATR 615 (‘ Cantor v Booth ’), 620 [21] (Kourakis CJ, Peek and Nicholson JJ agreeing). [64] SIS Act , s 19. [65] SIS Act , 17A(2).…
Hill v Zuda Pty Ltd
[2022] HCA 21 Para 23

…]. [15] Munro v Munro (2015) 306 FLR 93 at 100 [36]. [16] Retail Employees Superannuation Pty Ltd v Pain (2016) 115 ACSR 1 at 89-93 [495]-[511]. [17] Cantor Management Services Pty Ltd v Booth (2017) 16 ASTLR 489 at 495-496 [29]-[31]. [18] Re Narumon Pty Ltd [2019] 2 Qd R 247 at 258 [35]-[36].…
High Court Bulletin
[2022] HCAB 4

…peal held principle of comity required it to follow decision of SA Full Court in Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122 – Where SA Full Court held reg 6.17A did not apply to SMSF because s 59 of Act did not apply to SMSF but did not consider ss 33 or 55A – Whether intermediate appellate court b…
High Court Bulletin
[2022] HCAB 3

…peal held principle of comity required it to follow decision of SA Full Court in Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122 – Where SA Full Court held reg 6.17A did not apply to SMSF because s 59 of Act did not apply to SMSF but did not consider ss 33 or 55A – Whether intermediate appellate court b…
High Court Bulletin
[2022] HCAB 2

…peal held principle of comity required it to follow decision of SA Full Court in Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122 – Where SA Full Court held reg 6.17A did not apply to SMSF because s 59 of Act did not apply to SMSF but did not consider ss 33 or 55A – Whether intermediate appellate court b…
High Court Bulletin
[2022] HCAB 1

…peal held principle of comity required it to follow decision of SA Full Court in Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122 – Where SA Full Court held reg 6.17A did not apply to SMSF because s 59 of Act did not apply to SMSF but did not consider ss 33 or 55A – Whether intermediate appellate court b…
High Court Bulletin
[2021] HCAB 10

…peal held principle of comity required it to follow decision of SA Full Court in Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122 – Where SA Full Court held reg 6.17A did not apply to SMSF because s 59 of Act did not apply to SMSF but did not consider ss 33 or 55A – Whether intermediate appellate court b…
High Court Bulletin
[2021] HCAB 9

…principle of comity required it to follow decision of SA Full Court in Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122 – Where SA Full Court held reg 6.17A did not apply to SMSF because s 59 of Act did not apply to SMSF but did not consider ss 33 or 55A – Whether intermediate appellate court bound to fo…
Hill v Zuda Pty Ltd
[2021] WASCA 59 Para 6

…Pain ,[11] although his Honour did not finally decide the point. [8] Munro v Munro [2015] QSC 61 [36]. [9] Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122; (2017) 16 ASTLR 489 [29] - [31]. [10] Re Narumon Pty Ltd [2018] QSC 185 [35] - [36]. [11] Retail Employees Superannuation Pty Ltd v Pain [2016] SASC…
Hill v Zuda Pty Ltd as trustee for the Holly Superannuation Fund
[2020] WASC 89 Para 7

…Finally, the defendants relied on the judgment of the Full Court of the Supreme Court of South Australia in Cantor Management Services Pty Ltd v Booth (2017) 106 ATR 615. Once again the applicability of the regulations were squarely in issue. Kourakis CJ (with whom Peek and Nicholson JJ agreed) put the position this way: 30.In Munro v Munro , Mull…
Dawson v Dawson
[2019] NSWSC 826 Para 107

…the plaintiff would need to step down as trustee and the second defendant would need to be validly appointed: Cantor Management Services v Booth [2017] SASCFC 122 per Kourakis CJ at [26]-[28].…
Marsella v Wareham (No 2)
[2019] VSC 65 Para 1

…und remains compliant with the SIS Act may raise significant complexities.[44] [43] Ioppolo v Conti (2015) 293 FLR 412, 430. [44]See, eg, ibid; Cantor Management Services Pty Ltd v Booth (2017) 106 ATR 615.…
Re Narumon Pty Ltd
[2018] QSC 185 Para 7

…]-[36], that s 59(1A) of the Act does not apply to a self-managed superannuation fund.[29] [29] See also Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122; (2017) 106 ATR 615 in which Kourakis CJ (with whom Peek and Nicholson JJ) at [30] expressed agreement with the conclusion in Munro v Munro that s 59 o…

View all 14 citing cases →

Cases cited in this decision · 7 of 7 shown

Munro v Munro
[2015] QSC 61 Para 2

…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 Superannuatio…
Ioppolo and Hesford v Conti
[2013] WASC 389 Para 25

…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].…
Berger v Council of the Law Society of NSW
[2013] NSWSC 1080 Para 20

…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…
Nominal Defendant v Kisse
[2001] QDC 290 Para 20

…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’ prov…
Harbourside Pty Ltd v Werncog Pty Ltd
7 QB 293 Para 8

…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.…
(1915) 34 NZLR 913
(1915) 34 NZLR 913 Para 20

…(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 pe…
(1920) 53 DLR 249
(1920) 53 DLR 249 Para 20

…2 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 perso…

Legislation cited in this decision · 4

Superannuation Industry (Supervision) Act 1993 (Cth)
17A, 17A(3)(b)(ii) 3 mentions (from Para 15)
Acts Interpretation Act 1901 (Cth)
1 mention (from Para 5)
Corporations Act 2001 (Cth)
109X 1 mention
Superannuation Industry (Supervision) Regulations 1994 (Cth)
1 mention (from Para 28)