H.E.S.T Australia Ltd v Attorney-General (Qld) & Anor; Mercy Super Pty Ltd v Attorney-General (Qld) & Anor

In the Supreme Court of Victoria, H.E.S.T. Australia Ltd and Mercy Super Pty Ltd, trustees for respective superannuation entities, sought a declaration that a proposed successor fund transfer between the HESTA Superannuation Fund and the Mercy Super Fund was not a "substituted appointment" under the Criminal Code Act 1899 (Qld) and the Crimes Act 1958 (Vic). The applicants argued that the transfer did not involve the replacement or substitution of a trustee, and sought either a declaration or directions from the Court to effect the transfer. Both applicants emphasised that neither trustee relied on a power of appointment in the transaction documents, and none of the parties argued that the Court lacked jurisdiction to make the declaration sought.

The legal issues before the Court were whether the proposed successor fund transfer constituted a "substituted appointment" for the purposes of the Offence Provisions, and if the Court should direct or assent to the transfer. The Court considered the relevant statutory provisions and the nature of the transfer, concluding that the proposed transfer did not involve the replacement or substitution of a trustee. The Court found that the transfer of members and assets was governed by the terms of the successor fund transfer deed and the governing rules of the successor fund, and did not involve the replacement of trustees. Consequently, the Court held that the transfer was not a substituted appointment under the Offence Provisions.

In accordance with the applicants' requests, the Court declared that the proposed successor fund transfer was not a substituted appointment under the Offence Provisions. Additionally, the Court directed that the HESTA Trustee would be justified in, or alternatively, assented to the HESTA Trustee, offering and giving the promises set out in the Transaction Documents to the Mercy Super Trustee and Mater. The Court also ordered that the HESTA Trustee's costs of the application be paid or reimbursed out of the assets of the HESTA Fund on the indemnity basis, and that the Mercy Super Trustee's costs of the application be paid or reimbursed out of the assets of the Mercy Super Fund on an indemnity basis. The Court reserved the matter of other costs for further hearing.