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…
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- AGLC
- Cantor Management Services P/L v Booth [2017] SASCFC 122
- Case
- [2017] SASCFC 122
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
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Decision
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