Ding v Ding as Trustee for the Fund
[2002] WASC 132
DING -v- DING as Trustee for the Fund & ORS [2002] WASC 132
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 132 | |
| Case No: | CIV:2312/2000 | 22 NOVEMBER 2001, 8 & 15 APRIL 2002 | |
| Coram: | PULLIN J | 31/05/02 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Claim dismissed | ||
| B | |||
| PDF Version |
| Parties: | JANELLE MAREE DING DIANE DING as Trustee for the Fund BRIAN FITZGERALD as Trustee for the Fund JULIE NEALE as Trustee for the Fund |
Catchwords: | Trusts Superannuation Fund Trust Deed Death benefits Turns on own facts |
Legislation: | Superannuation Industry (Supervision) Act 1993 (Cth), s 19, s 30 and s 31 |
Case References: | Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Beaumont v Marquis of Salisbury (1854) 19 Beav 198 Boranga v Flintoff (1997) 19 WAR 1 Clay v Clay, unreported; FCt SCt of WA; Library No 960168; 27 March 1996 Homestake Australia Ltd v Metana Minerals NL (1991) 11 WAR 435 Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 Smith v Chadwick (1882) 20 Ch D 27 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
Will of PETER WAYNE DING (DEC)
- Plaintiff
AND
DIANE DING as Trustee for the Fund
BRIAN FITZGERALD as Trustee for the Fund
JULIE NEALE as Trustee for the Fund
Defendants
Catchwords:
Trusts - Superannuation Fund Trust Deed - Death benefits - Turns on own facts
Legislation:
Superannuation Industry (Supervision) Act 1993 (Cth), s 19, s 30 and s 31
(Page 2)
Result:
Claim dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr K E F Yin
Defendants : Mr C P Shanahan
Solicitors:
Plaintiff : Frichot and Frichot
Defendants : Butcher Paull and Calder
Case(s) referred to in judgment(s):
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Case(s) also cited:
Beaumont v Marquis of Salisbury (1854) 19 Beav 198
Boranga v Flintoff (1997) 19 WAR 1
Clay v Clay, unreported; FCt SCt of WA; Library No 960168; 27 March 1996
Homestake Australia Ltd v Metana Minerals NL (1991) 11 WAR 435
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60
Smith v Chadwick (1882) 20 Ch D 27
(Page 3)
1 PULLIN J: The plaintiff is one of three children of Peter Wayne Ding and Diane Ding. Mr Ding died on 1 October 1996.
2 The plaintiff claims that she is entitled to one-quarter of the death benefit payable under the provisions of the P W Ding Pension Fund, as varied. To understand this claim, it is first necessary to refer to the terms of Mr Ding's will.
3 Mr Ding's will was made on 12 September 1995, and after certain devises and bequests, he left to each of his wife and three daughters, one-quarter of the residue of the estate. Probate of this will was granted to Mrs Ding on 2 January 1997.
4 On 12 September 1995, a Deed of Variation of the P W Ding Pension Fund was executed by the trustees. This Deed of Variation contained a recital at 2.4 which read:
"The Trustees and the Members have agreed to amend the Trust Deed in the manner set out in this Deed to ensure that the Fund reflects the Members testamentary wishes."
5 It then contained a covenant which read:
"3.1 Clause 38.2 of the governing rules is deleted and replaced by the following:-
'Subject to the foregoing (but subject to Clauses 42 and 43), upon the death of a member prior to the Retirement Date and before the whole of his/her benefit has been paid to him/her, the Trustees shall pay or apply the death benefit, or such part of the death benefit as has not been paid, in the same manner as if the death benefit had formed part of the residue of the Members' estate under their last will and testament'."
"Mrs D M Ding (widow of the late P W Ding) would take over the P W Ding Allocated Pension from the date of death 1 October, 1996.
Valuation as at 1.10.96:- $546,621.00"
(Page 4)
7 The reference to the "P W Ding Allocated Pension" was something of a mystery when the matter came on for hearing before me on the first occasion, namely 22 November 2001. This was because the resolution of the trustees suggested that the deceased had retired before his death, and yet the parties were debating whether or not the new cl 38.2 of the governing rules applied, and whether it was a valid amendment or not. The clause, however, only operates in the case of death of a member "prior to the Retirement Date". As a result of debate on this point, an application for an adjournment was made and other evidence was then gathered and put before me. Based on all the material which is now before me, I can make the following findings of fact.
8 Mr Ding was an employee of Western Mining Corporation ("WMC") before 16 August 1995. Mr Ding was a member of what has been called, variously, the WMC Superannuation Fund and the Westminer Superannuation Fund. I will call it by the latter name, which seems to have been the official one, and abbreviate it to "Westminer".
9 Mr Ding was a member of Westminer, with the member number 004119D. On 16 August 1995, Mr Ding retired from his employment with WMC on the grounds of total and permanent disability.
10 On 25 August 1995, Mr Ding signed a payment instruction to Westminer, stating that he wanted to "rollover" 100 per cent of the $517,349 which then stood to his credit in Westminer, to the P W Ding Pension Fund.
11 The $517,349 was entirely "unpreserved", as that expression is used in the Superannuation Industry (Supervision) Act 1993 (Cth) and subsidiary legislation ("SIS Act").
12 On 5 September 1995, Mr and Mrs Ding, as trustees, executed a trust deed establishing the P W Ding Pension Fund ("Trust Deed").
13 On 12 September 1995, Westminer paid the sum of $519,587.17 to the P W Ding Pension Fund.
14 On 12 September 1995, the trustees executed the Deed of Variation of the P W Ding Pension Fund ("Deed of Variation") referred to above.
15 On 12 September 1995, Mr Ding executed his last will and testament containing the provision referred to at the commencement of these reasons for decision.
(Page 5)
16 Up until his death, Mr Ding received benefits from the P W Ding Pension Fund in the form of an allocated pension.
17 On 1 October 1996, Mr Ding died.
18 On 14 January 1997, the trustees of the P W Ding Pension Fund passed the resolution which I have referred to above, to the effect that Mrs Ding would take over the P W Ding Allocated Pension.
19 The plaintiff submits that the events on 12 September 1995 made it clear that Mr Ding intended that when he died, the monies standing to his credit in the P W Ding Pension Fund should be paid as to one-quarter to his wife and one-quarter to each of his three daughters. The intention, if it existed, must be discovered by reading the words in the Deed of Variation. The fact that on 12 September 1995, Westminer paid the rollover monies to the P W Ding Pension Fund, the trustees executed the Deed of Variation, and Mr Ding executed his last will and testament, are important facts which place the documents in context. The task of the court in construing the Deed is to discover the intention of the parties from the words of the instrument. If the words are unambiguous, the court must give effect to them: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109. The general rule is that evidence surrounding circumstances is admissible to assist in the interpretation of a deed if the language is ambiguous. But evidence of surrounding circumstances is not admissible to contradict the language when it has a plain meaning: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 347.
20 I will describe the Trust Deed and Deed of Variation in general terms and set out the particular clauses of importance to this dispute. Before doing so, I will refer to the legislation which governs superannuation. Superannuation legislation is under constant review and is regularly amended and changed. I will refer to the legislation as it stood in 1995.
21 Section 19(1) of the SIS Act 1993 defined a "regulated" superannuation fund as a superannuation fund in respect of which s 19(2) to (4) have been complied with. Those sub-sections required the fund to have a trustee with certain attributes, and the trustee to have made the election required in s 19(4). There is no dispute that the P W Ding Pension Fund is a regulated superannuation fund. Part III of the SIS Act details the operating standards for superannuation entities, the object of which at s 30 of the SIS Act is to "provide for a system of prescribed
(Page 6)
- standards applicable to the operation of regulated superannuation funds …". Section 31(1) of the SIS Act provides that the regulations may prescribe standards applicable to the operation of regulated superannuation funds. The provisions of the SIS Act were in operation by the 1 July 1994.
22 By 1 September 1995, the Commonwealth had prescribed operational standards for regulated superannuation funds. The prescribed operational standards are set out in the regulations made under the SIS Act and known as the Superannuation Industry (Supervision Regulations 1994) ("SIS Regulations").
23 The operational standards allowed retirees to have access to their superannuation benefits upon the retirees satisfying a "Condition of Release", which was defined at reg 6.01 as meaning "a condition of release specified in Column 2 of Schedule 1". A member of a fund is taken to have satisfied a condition of release if an event specified in Column 2 of Schedule 1 has occurred in relation to that member.
24 Two conditions of release specified in Column 2 Schedule 1 were "retirement" and "permanent incapacity".
25 "Retirement" was defined in Regulation 6.01 as having the meaning given by sub-regulation (7), that is:
"For the purposes of Schedule 1, the retirement of a person is taken to occur:
(a) in the case of a person who has reached a preservation age that is less than 60 - if:
(i) an arrangement under which the member was gainfully employed has come to an end; and
(ii) the trustee is reasonably satisfied that the person intends never to again become gainfully employed, either on a full-time or a part-time basis; or
(b) in the case of a person who has attained age 60 - an arrangement under which the member was gainfully employed has come to an end on or after the member attained that age."
26 "Permanent incapacity" is defined to mean:
(Page 7)
- "Ill-health (whether physical or mental), where the trustee is reasonably satisfied that the member is unlikely, because of the ill-health, ever again to engage in gainful employment for which the member is reasonably qualified by education, training or experience."
27 I should also refer to the definition of "transferred retiring member", which is a definition which was originally included in the Occupational Superannuation Standards Act 1987 (Cth), which has had several name changes since. The definition read:
"'Transferred retiree member' in relation to a fund means a member of the fund where:
(a) the member has retired from the business trade profession vocation calling occupation or employment in which the member had been engaged (whether the member's retirement occurred before, or occurred after, the member joined the fund); and
(b) at or after the member's retirement, an amount was paid to the trustees of the fund in respect of the member by:
(i) the trustees of another fund, being a superannuation fund or an approved deposit fund; or
(ii) a life insurance company; or
(iii) a registered organization."
29 I now turn to the P W Ding Pension Fund Deeds. The Deed executed on 5 September 1995 seems to be an off-the-shelf or precedent-driven document. It is drafted in a way which allows the document to apply in circumstances where a gainfully employed person wishes to provide retirement benefits by making contributions preserving those until the minimum retirement age of 55, or until death or incapacity, with restrictions on payment until retirement or death, and then providing for permanent or lump sum benefits to be paid to the retiree or beneficiary.
(Page 8)
30 However, the Deed also contemplated that a person who had already retired, and therefore not a gainfully employed person, could be a member.
31 I now turn to set out the specific provisions of the Deed and the Rules to the Deed which formed part of the Deed. They are:
"2.1 The Trustees have determined to establish and maintain an indefinitely continuing superannuation fund (hereinafter called 'the Fund') to be known by the name set forth in the First Schedule with the primary object of providing fully secured superannuation benefits as old age pensions for the gainfully employed person or persons named in the First Schedule as the members of the Fund and who will henceforth be beneficiaries of the Fund ('the Members') and the Dependants of the Members.
2.2 The Trustees agree to conduct the Fund as a complying and regulated superannuation fund pursuant to the provisions of the Occupational Superannuation Standards Act 1987, Superannuation Industry (Supervision) Act 1993, and the Regulations thereunder as amended from time to time.
…
3.1 'Deed' means this Deed and the Schedules forming part of this Deed and the Rules annexed hereto as amended from time to time.
3.2 'Members' means the member or members named in the First Schedule to this Deed and any future member or members of the Fund.
…
5. COMMENCEMENT OF FUND
The Fund shall be established and maintained as an indefinitely continuing fund to provide old age pensions and ancillary benefits for gainfully employed members, and shall commence from the commencement date set forth in the Second Schedule."
(Page 9)
32 Mr and Mrs Ding were named as members in the First Schedule.
33 The Second Schedule is only referred to in cl 5. An inspection of the Second Schedule, however, reveals that it contains not only the "commencement date" but also it has the following words:
"Retirement Date
The sixty-fifth (65th) anniversary of the date of birth of the Member or such other date as the Trustees may determine generally or in respect of an individual Member provided however that in any event the retirement date will be not later than the seventieth (70th) birthday of the Member and not earlier than the fifty-fifth (55th) birthday of the Member and subject always to the requirements laid down in respect of complying regulated funds pursuant to the provisions of Relevant Law."
34 Nothing is said in the Deed to indicate that this is to be the definition of "Retirement Date" where those words appear in the Deed and the Rules to the Deed. The words "Retirement Date" are used in the Rules, but the Rules have their own, and different, definition of "Retirement Date". The insertion of what may appear to be a definition in the Second Schedule words, may be an error, or alternatively it may have been intended that the operative part of the Deed would make some reference to these words. If the latter, then, in fact, no reference is made to the words in the operative part of the Deed. It is the first example of a number of deficiencies in the Deed which became apparent during the hearing.
35 I now refer to relevant provisions in the Rules to the Deed as follows:
"1.2 'Accumulated Benefit' means in respect of a Member's Account an amount equal to the sum of
…
1.2.2 the Member's Transferred Benefit (if any)
…
1.22 'Gainful Occupation' means engagement in any business, trade, profession, vocation, calling, occupation or employment including but not limited to employment as or engagement in any directorship agency dealership
(Page 10)
- business undertaking or contractual undertaking, and 'Gainfully Occupied' shall have a like meaning.
- …
1.31 'Member's Transferred Benefit' means in respect of a Member an amount equal to the sum of the amount of benefit transferred into the Fund pursuant to Clause 40 of these Rules with interest thereon at the rate prescribed from time to time by the Trustees or by the Regulations and including that Member's apportioned share of all forfeited benefits.
…
1.47 'Retirement Date' means the retirement date determined by the Trustees and to be set out in the Trustees Minutes.
…
1.58 'transferred retiree member' has the same meaning as set out in the Regulations."
36 ("Regulations" is defined as meaning the OSS Regulations or the SIS Regulations as in force from time to time, and any regulations enacted in substitution for them or any of them.)
37 Rule 23 identified persons who were eligible to become members. The heading to Rule 23 is "Eligible Persons", and it reads:
"Any gainfully occupied person including any transferred retiree member shall with the approval of the Trustees or as required by law be eligible to apply to become a Member of the Fund and upon acceptance by the Trustees of the application the said person shall thereupon be bound by the provisions of this Deed in all respects."
38 This rule gives rise to difficulty. If a person is a "transferred retiree member", then, by definition, they have already retired and therefore are not "gainfully employed". This is another example of poor drafting. In my view, this clause should be interpreted as defining "eligible persons" to include persons who are gainfully occupied and to also include a person who is a "transferred retiree member".
(Page 11)
39 Rule 32.1 deals with the preservation of benefits. I only refer to this to make it clear that the preservation of benefits does not only apply in the case of members who retire voluntarily but also contemplates early retirement on the ground of permanent incapacity or permanent invalidity. The rule reads:
"32.1 With respect to each Member of the Fund, the benefits referred to in the Regulations in relation to the Member, except to the extent to which those benefits become payable on retirement of the Member before attaining the age of 55 years (in the form of a non-commutable pension or annuity payable for life), shall be preserved until:-
…
32.1.3 those benefits become payable in one of the following circumstances:
32.1.3.1 the retirement of the Member from the work force before attaining the age of 55 years on the ground of permanent incapacity or permanent invalidity."
"36.1 Subject to these Rules, upon a Member retiring from gainful occupation and provided that the Member is aged at least fifty-five (55) years and not more than seventy (70) years the Trustees shall pay to the Member his benefit by way of an allocated pension, fixed term pension, life pension, or Lump Sum (as shown in the Schedule) or otherwise according to a determination agreed between the Member and the Trustees not less than one (1) year prior to the Retirement Date (or such shorter period as approved by the Trustees) and conveyed by notice in writing to the Trustees. In the absence of any such determination by the Member, the Trustees shall assume that the benefit is to be paid by way of a Pension, in which case the Trustees shall have an absolute discretion as to the type of Pension to be paid."
41 Rule 38 deals with "Death Benefits". When the Deed was executed, it contained the following provisions:
(Page 12)
- "38.1 On the death of a Member the Trustees will have an absolute discretion to pay beneficiaries by way of lump sum or alternatively to pay a Pension in the case of a dependant beneficiary.
38.2 Subject to the foregoing (but subject to Clauses 42 and 43 of these Rules), upon the death of a Member prior to the Retirement Date and before the whole of his/her benefit has been paid to him/her, the Trustees shall pay or apply for the benefit of any one or more or all of the Dependants of the deceased Member and in such shares and proportions and in such manner as the Trustees in their absolute discretion determine, the death benefit, or as a death benefit such part of the benefit as has not been paid.
…
38.5 Subject to Clauses 42 and 43 of these Rules, upon the death of a Member on or after the Retirement Date the Trustees may:-
38.5.1 in the case of a Member who has determined a preference for a Pension either in whole or part, pay such amount of Pension as would have been payable as if the Member had retired, to the Surviving Spouse (if any), but if there is no Surviving Spouse then pay or apply a Residual Benefit in accordance with Clause 40 hereof; and
38.5.2 in the case of a Member who has determined a preference for a Lump Sum either in whole or part, pay or apply the amount of the Lump Sum benefit as a death benefit as if the Member had died prior to the Retirement Date."
43 Finally, I refer to rule 40 which reads:
"BENEFITS TRANSFERRED FROM OTHER FUNDS
(Page 13)
- Subject to the provisions of this Deed, the Trustees may in their absolute discretion and subject to such terms and conditions as they think fit accept from the trustees of an Alternate Fund of which the Member is or was a member and from the Member a benefit whether by cash, Policy or otherwise, the amount of the benefit being an amount accrued in respect of the Member under such Alternate Fund and that part (if any) of the said amount accepted by the Trustees as represents an amount vested in the Member at the date of transfer shall be held as a Member's Transferred Benefit PROVIDED THAT amounts included therein requiring preservation shall be identified as such at the date of transfer."
44 The Deed of Variation contains the change which I have already referred to. The last recital in the Deed of Variation reads:
"The Trustees and the Members have agreed to amend the Trust Deed in the manner set out in this Deed to ensure that the Fund reflects the Members testamentary wishes."
45 As a recital to explain the purpose of the operative part of the Deed of Variation, it fails. To say that it is "to ensure that the Fund reflects the Members testamentary wishes", is meaningless in the circumstances. The Deed of Variation was executed by Mr and Mrs Ding in their capacity as trustees and members.
The Parties' Arguments
46 The plaintiff still contends that Rule 38.2 as it appears in the Deed of Variation, applies to give the plaintiff an entitlement to the relief claimed. It is said that this rule gives the plaintiff an entitlement to one-quarter of the benefits of Mr Ding which had accumulated in the P W Ding Pension Fund. In my opinion, Rule 38.2 has no application in the circumstances of this case. This rule only has application prior to the "Retirement Date". Mr Ding retired on 16 August 1995. He retired because of total and permanent incapacity. After the second hearing before me, the defendants asked for a further short adjournment and returned to the Court with a resolution which had been passed by the trustees of the P W Ding Pension Fund on that day in these terms:
"1. The Trustees agreed, resolved and determined that the Retirement Date of the late P.W. Ding was 16 August 1995, as previously understood, relied upon and applied
(Page 14)
- by the Trustees of the P. W. Ding Pension Fund ('the Fund').
- 2. The Trustees agreed, resolved and determined that the late P. W. Ding was a 'transferred retiree member' of the Fund from 12 September 1995 when the Fund received $517,349.00, being an amount rolled over from the Westminer Superannuation Fund to the benefit of P.W. Ding pursuant to regulation 6.17(2)(a)(ii) of the Superannuation (Supervision) Regulations (1994) (Cwlth).
3. The Trustees agreed, resolved and determined that the late P.W. Ding received his benefits as a Member of the Fund during his life in the form of an Allocated Pension pursuant to, and in accordance with, his preference as communicated to the Trustees.
4. The Trustees agreed that details of the Allocated Pension paid to P.W. Ding for the year ending 30 June 1996 were as set out in the attached letter from the Fund Administrator to P.W. Ding dated 22 April 1996."
47 By that resolution, the trustees affirmed what appeared to have been accepted as the retirement date during the administration of the Fund ever since its creation. However, the resolution also constitutes a determination by the trustees, and (remembering that the "Retirement Date", according to Rule 1.47, is a date determined by the trustees), there can be now no dispute that the "Retirement Date" was 16 August 1995. I hold that Rule 38.2 has no application to the present circumstances.
48 The defendants say that the trustees' resolution to continue paying the allocated pension to Mrs Ding, was a resolution passed pursuant to Rule 38.1, or alternatively pursuant to Rule 38.5. The plaintiff contends that Rule 38.5 could not apply, because the phrase "Retirement Date" is defined in the Second Schedule to the Deed. If that were the definition, then there can be no retirement date earlier than the 55th birthday of the member, and Mr Ding was not 55 when he died. The plaintiff therefore argues that the death of Mr Ding could not have been after the "Retirement Date. As I have explained, the words which appear in the Second Schedule are not put to any use in the Deed. In my view, the definition of "Retirement Date" is that which is set out in Rule 1.47 (see
(Page 15)
- above), and is therefore the date determined by the trustees and the date on which in Mr Ding did, in fact, retire (ie 16 August 1995).
49 In my opinion, both Rule 38.1 and Rule 38.5 authorised the trustees to pass the resolution which they did on 14 January 1997 (see above), which provided for the payment of the allocated pension to Mrs Ding.
50 I therefore conclude that the Deed of Variation did not reflect an intention on the part of Mr and Mrs Ding to provide for Mr Ding's benefits in the Fund to be paid to his wife and daughters as to one-quarter each.
51 The P W Ding Pension Fund is an indefinitely continuing fund (see Rule 3.3 of the Deed). It contemplates that persons other than Mr Ding could become a member of the Fund. Indeed, Mrs Ding was a member of the Fund from inception. It cannot therefore be assumed that the amendment in the Deed of Variation was intended only to apply to Mr Ding himself. The amendment worked by the variation of deed is an amendment which applies to all future members. It is because it applies to all future members that the defendants argued that the amendment to introduce the new Rule 38.2 was beyond the power of the trustees. In view of the conclusion I have reached above, it is not necessary to deal with this argument because it was an argument which only arose if I found that Rule 38.2 applied in this case. I have not done so, but because the argument was advanced, I should deal with it. Rule 60.2 of the Deed read as follows:
"60.2 The Trustees shall be entitled at any time and from time to time with the written consent of the Members, to alter add to or repeal all or any of the provisions of the Deed:-
60.2.1 to enable the Fund to comply with Relevant Law, or
60.2.2 to enable the Trustees to reduce or vary the benefits for the purposes of Clause 30 of these Rules, or
60.2.3 for any other purpose PROVIDED THAT no such alteration addition or repeal shall operate so as to:-
60.2.3.1 vary the objects of the Deed; or
(Page 16)
- 60.2.3.2 remove or diminish or purport to remove or diminish those benefits vested in a member;
60.2.3.3 enable any preserved benefit to be paid out of the Fund prior to the retirement, resignation, dismissal or death of the Member; or
60.2.3.4 prejudicially affect the existing rights in respect of any Member at the date from which such alteration, addition or repeal is to be effective unless –
60.2.3.4.1 all of the Members shall consent thereto in writing; or
60.2.3.4.2 approval to same is first granted in writing by the I.S.C.;
60.2.3.5 impose any further liability on any employee entitled to participate in the Fund, without that employee's consent."
52 It is submitted that the variation operated to vary the objects of the Deed, contrary to Rule 60.2.3.1. I agree with this submission. The object of the Deed is set out in cl 2.1 of the Deed, which makes it clear that the Fund has the primary object of providing superannuation benefits for the members of the Fund and the dependants of the members. The change which has taken place in the Deed of Variation would allow a person to make a will, leaving all property to a charitable institution, which would mean that the benefits under the Fund would, upon death, pass to that charity. Allowing that possibility is contrary to the primary object of the P W Ding Pension Fund. It is no argument to say that in this particular case, the clause operates so as not to infringe the object. The way to test the validity of the variation is to ask whether it would allow death benefits in any circumstances to be paid to persons other than members or their dependants.
53 As a result, I dismiss the plaintiff's claim.
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