Dawson v Dawson - [2019] NSWSC 826

Supreme Court

New South Wales

Medium Neutral Citation: Dawson v Dawson [2019] NSWSC 826
Hearing dates: 8, 12 April 2019
Date of orders: 03 July 2019
Decision date: 03 July 2019
Jurisdiction: Equity
Before: Henry J
Decision:
(1)   Declare that the plaintiff and the first defendant were, by Deed dated 17 March 2014, appointed the “New Trustee(s)” of the Dawson Superannuation Fund (the Fund).
(2)   Declare that the plaintiff and first defendant continued as the Trustees of the Fund after the death of Peter Robert Dawson on 24 November 2015 and remain the Trustees of the Fund today.
(3)   Declare that the second defendant is not a Trustee of the Fund.
(4)   Order that the first defendant do all things reasonably necessary to provide and deliver up to the plaintiff the records and accounts of the Fund.
(5)   Order that the defendants pay the plaintiff’s costs of the summons.
(6)   Vary order 2 of the orders made by Hallen J on 20 September 2018 so that it reads: upon the plaintiff, by his counsel, giving the usual undertaking as to damages to the Court, and by consent and until 5pm on Tuesday 9 July 2019 or until some other date as determined by the Court:
(a)   the first defendant be restrained from taking any further action in relation to the plaintiff’s status as trustee of the Fund which is the subject of the dispute in these proceedings; and
(b)   the first and second defendant be restrained from dealing with, taking possession of, or in any way disbursing, the assets of the Fund without the consent of the plaintiff or an order of the Court.
(7)   Re-list the matter before me at 9am on Tuesday 9 July 2019.

Catchwords: EQUITY – trusts and trustees – superannuation funds – dispute about identity of trustee – whether trustee with enduring power of attorney appointed in personal capacity and ceased as trustee when power of attorney terminated – whether trustee ceased to hold office under superannuation fund deed – whether s 17A Superannuation Industry (Supervision) Act 1993 (Cth) operated to appoint deceased member’s executor as trustee – whether executor validly appointed trustee under superannuation fund deed – effect of purported ratification of prior appointment of trustee where no consent by existing trustee
Legislation Cited: Powers of Attorney Act 2003 (NSW) s 10
Superannuation Industry (Supervision) Act 1993 (Cth) ss 17A, 120
Trustee Act 1925 (NSW) s 70
Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited: Ainsworth v Davern [2018] VSC 80
Apotex v Servier (No 2) (2012) 293 ALR 272; [2012] FCA 748
Cantor Management Services v Booth [2017] SASCFC 122
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510
Douglas v James [2015] NSWSC 1403
Exception Holdings Pty Ltd (in liq) v Albarran & Ors [2005] NSWSC 677
Ioppolo v Conti (2015) 293 FLR 412; [2015] WASCA 45
Johnson v Trotter; Re Estate of Trotter [2006] NSWSC 67
Katz v Grossman…

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 Dawson v Dawson

Details

AGLC: Dawson v Dawson [2019] NSWSC 826
Case: [2019] NSWSC 826
Decision Date: 03 July 2019

CaseChat Overview and Summary

In the case of Dawson v Dawson, the deceased, Mr. Dawson, had established a self-managed superannuation fund (SMSF) with his son, the respondent, acting as trustee. Following Mr. Dawson's death, the appellant, who was the deceased's daughter, sought to have the son's appointment as trustee terminated and herself appointed as the new trustee of the fund. The dispute centred on whether the son had been appointed as trustee in his personal capacity or as an agent under an enduring power of attorney. The High Court of Australia was called upon to determine the correct interpretation of the fund's deed and the applicability of relevant statutory provisions.

The primary legal issue was whether the son's appointment as trustee ceased upon the termination of the enduring power of attorney or if he retained his position as trustee in his personal capacity. Additionally, the court had to consider whether the statutory provision, section 17A of the Superannuation Industry (Supervision) Act 1993 (Cth), which allows for the appointment of a deceased member's executor as trustee, applied in this case, and whether the executor was validly appointed under the fund's deed. Furthermore, the court needed to address the effect of the purported ratification of the prior appointment of the son as trustee, in the absence of consent by the existing trustee.

The court found that the son had been appointed as trustee in his personal capacity, and his appointment did not cease upon the termination of the enduring power of attorney. The court held that section 17A of the Superannuation Industry (Supervision) Act 1993 (Cth) did not apply in this situation, as it was intended to address cases where there was no prior appointment of a trustee. Consequently, the executor was not validly appointed as trustee under the fund's deed. Moreover, the court determined that the purported ratification of the prior appointment of the son as trustee was ineffective, as it did not have the consent of the existing trustee. As a result, the son remained the trustee of the SMSF.

In conclusion, the court's decision upheld the son's continued role as trustee of the SMSF. The daughter's application to have the son's appointment terminated and herself appointed as trustee was dismissed. The court's ruling ensured that the fund remained under the control of the individual originally appointed by the deceased, in accordance with the terms of the fund's deed.

Orders