JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HILL -v- ZUDA PTY LTD [2021] WASCA 59
CORAM: BUSS P
MURPHY JA
MITCHELL JA
HEARD: 8 FEBRUARY 2021
DELIVERED : 23 APRIL 2021
FILE NO/S: CACV 49 of 2020
BETWEEN: CLAIRE ELIZABETH HILL
Appellant
AND
ZUDA PTY LTD (ACN 008 968 232) as trustee for THE HOLLY SUPERANNUATION FUND
First Respondent
JENNIFER PATRICIA MURRAY as executor of the estate of ALEC SODHY
Second Respondent
JENNIFER PATRICIA MURRAY
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: HILL -v- ZUDA PTY LTD as trustee for THE HOLLY SUPERANNUATION FUND [2020] WASC 89
File Number : CIV 2767 of 2019
Catchwords:
Superannuation - Whether regulation prescribing standards for a valid binding death benefit nomination applies to self managed superannuation funds
Courts and judges - Precedent - When an intermediate appellate court can depart from construction of Commonwealth legislation adopted by another Australian intermediate appellate court - Whether construction of legislation adopted by another intermediate appellate court is plainly wrong
Legislation:
Superannuation Industry (Supervision) Act 1993 (Cth), s 31, s 34(1), s 55A, s 59
Superannuation Industry (Supervision) Regulations 1994 (Cth), reg 6.17A, reg 6.22
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | B W Ashdown |
| First Respondent | : | A P Hershowitz |
| Second Respondent | : | A P Hershowitz |
| Third Respondent | : | A P Hershowitz |
Solicitors:
| Appellant | : | Eastwood Law |
| First Respondent | : | Lawton Gillon |
| Second Respondent | : | Lawton Gillon |
| Third Respondent | : | Lawton Gillon |
Case(s) referred to in decision(s):
CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390
Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122; (2017) 16 ASTLR 489
Casella v Hewitt (2008) 36 WAR 1; [2008] WASCA 13
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
R v Falzon [2018] HCA 29; (2018) 264 CLR 361
Re Narumon Pty Ltd [2018] QSC 185
Retail Employees Superannuation Pty Ltd v Pain [2016] SASC 121
JUDGMENT OF THE COURT:
Summary
The legal issue raised by this appeal is whether reg 6.17A(4), (6) and (7) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations) apply to self managed superannuation funds. Those regulations deal with the manner in which a member of a regulated superannuation fund may give notice requiring the trustee of the fund to pay a benefit of a member, on or after the member's death, to a nominated person.
The resolution of that question in the present case is complicated by the fact that this is an appeal against an award of summary judgment in favour of the respondents, who were the defendants in the primary proceedings. Ordinarily, the question…
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- AGLC
- Hill v Zuda Pty Ltd [2021] WASCA 59
- Case
- [2021] WASCA 59
- Decision Date
CaseChat Overview and Summary
The court examined whether the relevant regulations applied to self-managed superannuation funds and if the master's interpretation of those regulations was correct. The appeal hinged on the proper construction of the legislation, particularly whether the regulations in question applied to self-managed superannuation funds. Both parties agreed that the court should rule on the construction of the relevant provisions. The court concluded that the regulations did not apply to self-managed superannuation funds and that the master's interpretation was correct. The court held that the appeal should be dismissed as the case was not reasonably arguable.
The court found that the appeal was not reasonably arguable, and the master correctly interpreted the relevant provisions. The appeal was dismissed, and the summary judgment in favour of the respondents was upheld. The court held that the regulations in question did not apply to self-managed superannuation funds, and the master's interpretation was correct. The primary judgment, which dismissed Ms Hill's claim, was affirmed. The court's decision resolved the primary proceedings and provided finality to the dispute.
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
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Ratio Decidendi
Legal Principle Established
The resolution of that question in the present case is complicated by the fact that this is an appeal against an award of summary judgment in favour of the respondents, who were the defendants in the primary proceedings. Ordinarily, the question on an appeal against summary judgment in favour of a defendant is whether the plaintiff's case is reasonably arguable. However, both parties invited this court to reach and apply its final view as to the proper construction of the legislation.[1] We are satisfied that this is a case where this court, on appeal from orders made in a summary judgment application, may properly take the anomalous course of ruling on the proper construction of the relevant provisions.[2] A final ruling can resolve the primary proceedings and the resolution of the question of statutory construction does not turn on any disputed question of fact.[1] Appeal ts 14, 31.[2] See Theseus Exploration NL v Foyster (1972) 126 CLR 507; Casella v Hewitt (2008) 36 WAR 1; [2008] WASCA 13 [36]; NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [36], [57], [121], [134]. In our view, this court is bound to hold that reg 6.17A(4), (6) and (7) do not apply to self managed superannuation funds. The master did not err in adopting that construction, and the appeal should be dismissed. The appellant, Ms Hill, is the only child of Alec Kumar Sodhy (the deceased) who died on 22 November 2016. Prior to his death, the deceased was in a de facto relationship with Jennifer Murray. Ms Murray is joined as the second respondent in her capacity as the executor of the deceased's estate and as third respondent in her personal capacity. Ms Murray in her personal capacity is the beneficiary of the deceased's estate. Ms Hill has made a claim under the Family Provision Act 1972 (WA) against the deceased's estate. Ms Murray is also the sole director of the first respondent (Zuda), which is the trustee of the Holly Superannuation Fund (Fund). It is common ground that the Fund is a regulated superannuation fund and a self managed superannuation fund for the purposes of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act). Prior to the death of the deceased, the deceased and Ms Murray were the only members of the Fund, which was created by Deed dated 14 June 2000. Since the deceased's death, Ms Murray has been the only member of the Fund. The Deed creating the Fund was amended by a Deed dated 13 December 2011 (amending Deed), which replaced the original Trust Deed and the rules relating to the Fund. Clause 3 of the amending Deed provides that Zuda shall hold the assets of the Fund on trust and apply them in the manner set out in the rules attached to the amending Deed (Rules). Clauses 5 and 6 of the amending Deed provide:5.Despite anything else in the trust deed or Rules, if either of Alec Kumar Sodhy or Jennifer Patricia Murray dies, then the Trustee must distribute the whole of the deceased Member's Account Balance to the other Member and may pay any part of the benefit as a lump sum or as a pension as the Trustee considers appropriate.6.Clause 5 is a Binding Death Benefit Nomination for the purpose of the Rules.